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greenducky · Jul 31, 2006, 10:28 PM

Hello my name is john. I have found a condo to rent, through a roommate directory. I would be living there with another roommate, whose name is stated on the lease. The roommate requested that I pay a deposite of 200 dollars and first and last months rent of 495. Totalling 1190 dollars. The lease stated that I would move in on August 1. assuming that I have paid all money due. Well I have found something else that is cheaper for me because I recently lost my job. So I sent the roommate an email telling her that I would not be moving in, I haven't paid any of the money due at all . I only paid for an application fee. However I did sign the lease. The roommate and myself talked on the phone the next day, and she was really mad at me and told me that she would be contacting her attorney. But just to be clear she has an agreement with the complex managers, I donot, I only have a signed lease with her. The lease agreement was for month to month. I donot know what to do as I cannot afford to just pay her and live in my new place. Please someboby tell me if she has a leg to stand on.

brooks · Jul 31, 2006, 11:41 PM

Your roommate is acting in the capacity of a landlord. You signed a contract and are liable to damages incurred to the contract holder. In this case it would be loss of rent. Unless there is an out in the contract I would say that since the contract is for a month to month period, you would be liable for 990.00 I am assuming that the contract has a 30 day notice stipulation that you would be moving. You may be able to get out of the lease entirely if you can find someone that meets the landlord and the roommates rental criteria. Another approach might be to negotiate a lump sum payment to the roommate and have her sign a release from the contract. Finally, if you can find something in the lease or in the apartment that would make your moving in a hazard to your health, or a possible problem with privacy, such as no doors to your room, then you can fight it in court and possibly win. I would recomment that you negotiate an end to the rental agreement as it would put money in her pocket and she can start looking for another roommate.

RickJ · Aug 1, 2006, 03:35 AM

Originally Posted by greenducky

Hello my name is john. I have found a condo to rent, through a roomate directory. I would be living there with another roomate, whose name is stated on the lease. the roomate requested that i pay a deposite of 200 dollars and first and last months rent of 495. totalling 1190 dollars. the lease stated that i would move in on august 1. assuming that i have paid all money due. well i have found something else that is cheaper for me becuase i recently lost my job. So i sent the roomate an email telling her that i would not be moving in, i havent paid any of the money due at all . i only paid for an application fee. however i did sign the lease. the roomate and myself talked on the phone the next day, and she was really mad at me and told me that she would be contacting her attorney. But just to be clear she has an agreement with the complex managers, i donot, i only have a signed lease with her. the lease agreement was for month to month. i donot know what to do as i cannot afford to just pay her and live in my new place. please someboby tell me if she has a leg to stand on.

I don't think you have anything to worry about. Yes, she can sue you... but anyone can sue anyone for anything... but the fact that you did not take possession will be a big factor.

I doubt very much she will pay an attorney to sue you in an iffy case... and even if she contacts an attorney, I think he'd tell her that she doesn't have a case.

Let us know how it goes.

ScottGem · Aug 1, 2006, 05:50 AM

I have to agree with Brooks and mostly disagree with Rick. You signed the lease. It matters not that it was a sublease, you entered into a legal contract and are now talking about breaching that contract.

Whether she decides to pursue legal remedies or not is up to her. She can use small claims court to avoid hiring an attorney. The fact that you didn't move in is not going to have a great deal of weight. The only legal issue is the terms of the lease. I would try to settle with her for one month's rent.

RickJ · Aug 1, 2006, 06:14 AM

Excellent points added above.

In my state possession is "9/10ths of the law", but of course the way magistrates and judges view things can vary - unless there is precedence.

Since the lease was month to month that means that you could have gone through with it and given your notice to move the same day... leaving the "landlord" netting only one month's rent... so if you do try to settle, then try to settle for less than that.

excon · Aug 1, 2006, 06:26 AM

Hello Green:

Consider consideration.

Consideration is the glue that binds a contract. Without consideration, there's no contract. Consideration confirms that there was a "meeting of the minds". Without a meeting of the minds, there's no contract.

You did not pay consideration. Had you paid any money toward rent or your deposit, THAT would be consideration. You didn't. You paid an application fee.

Therefore, I suggest that no contract was entered into, and you don't owe a dime.

excon

ScottGem · Aug 1, 2006, 06:35 AM

I have to disagree with excon. There are two parts to the consideration of a contract. On your part you received the promise of a place to live. That place to live was ready for you to move into today. Therefore, the other party upheld her part of the contract. By holding the space for you, she was unable to rent it to someone else, thereby suffering a loss.

The fact that you hadn't paid anything yet does not absolve you from the terms of the contract.

LisaB4657 · Aug 1, 2006, 07:03 AM

I have to agree with Brooks and Scottgem. You signed a contract so you can be held to that contract. The good news is that you can give her 30 days notice today and get out of this by paying only one month of rent.

The only way I can think of that you can get out of this is if the written lease between the landlord and this roommate prohibits sublets. Then her proposed agreement with you would be in violation of the written lease and you would be able to walk away.

RickJ · Aug 1, 2006, 07:09 AM

Originally Posted by LisaB4657

I have to agree with Brooks and Scottgem. You signed a contract so you can be held to that contract. The good news is that you can give her 30 days notice today and get out of this by paying only one month of rent.

The only way I can think of that you can get out of this is if the written lease between the landlord and this roommate prohibits sublets. Then her proposed agreement with you would be in violation of the written lease and you would be able to walk away.

Greenducky, note that this is the opinion of an attorney ;)

Fr_Chuck · Aug 1, 2006, 07:31 AM

Well I will go against the flow here ( of course that is why there are layers and law suits, both sides believe they can show their side in court.

First you paid an application fee ( this was not a binding document) and the money paid was to do background checks, credit checks and for the paperwork involved. * I will note that I doubt she did any of those things but merely charged one because she could*

She would be subletting part of her apartment, I would first check with the apartment manager and see if this was legal for her to do under her lease. Some leases allow subletting, others do not. If her lease did not allow her to do this, then this would be an illegal offer and not inforceable.

Next does your recept for the money you paid her say for application fee ? If not she could try and say this was money to "hold" the apartment.

Also it could be argued that your signing the application and giving her the signed lease was an offer made, and she accepted that offer and since you paid the fee it was consideration.

But of course the other side, which I would hold, is that the fee was merely to check background, and that the actual contract (lease) was an offer they made after they checked your background, you indeed accepted that offer by signing the contract but never paid any consideration on that contract.
You never acted upon it.

Now her side can also state that since she had your signed contract that she then acted upon it in good faith, thus stopping her add and that to re-rent the apartment she would have to have to pay money out for new adds and the such. And that this loss and her actions did constitute consideration.

Then it will be up to a judge to decide under your state comsumer laws if a true contract was formed. * remember just signing the paper does not a contract make normally it is those actions that go along with that contract.

Now the next idea, will she really sue, she is not the apartment manager merely going to sublet, so will sue sue for one months rent ( since it was going to be on a month to month basis, if you gave notice to move out on the first day you moved in, all you would owe would be one month. So at the end of that month, she would owe you the deposit and since you would have paid two months rent (first and last) but only stayed one, she would owe you one month rent back. So even from a legal stand point if you do owe her, if would only be for one month.

Next save a copy in writing of that email ( and next never do legal notice by email always in writing and certified so you have proof of delivery) she can really claim you never notified her and you can't really prove you did.

So will she hire an attorney for one month rent? Most likely not, it would not be worth it. Will she go down to the court house and file a small claims case against you, ( well she may think she is entitled to all that money deposit, first and last and thinks she can keep it) so she may try that, and you will go present your case and lose but only owe her one months rent when it is all over. ( my opinoin anyway)

But most likely, she will merely threaten you, and harrasse you some about it, and then if you don't pay move on ( but of course I am wrong many times)

My opinion, first never sign any contract unless you are going to live with it, a persons word has to be his bond and if we back out of contracts , have buyers remorse and the such peple will have problems trusting us in the future. Next you owe her one months rent, I would offer that as a settlement in full of all clains, do it in writing , if you do go to court it would show good faith effort on your part. ( but offer it of course as a settlement not stating that you have any real obligtion to pay)

Next opinion, you can see how both sides can say they have a case under the same laws, so go to school and be an attorney since they can find a case for anyone.

excon · Aug 1, 2006, 07:52 AM

Hello again:

Ok, the consideration aspect is arguable. But, do any of you believe that there was a “meeting of the minds”?

I offer only one fact to show that there was none. Green kept looking. Had green agreed to move in, he wouldn't have continued to look. Indeed, have you ever shopped for an apartment? I have, and I hated it. When you found it, didn't you go “wheew”, I can stop looking now? And, IF you kept looking, wouldn't that mean that you HADN'T found a home?

It would to me, and I believe it would to a judge. I again submit that there was no contract.

excon

LisaB4657 · Aug 1, 2006, 07:57 AM

Sorry, excon, but I have to disagree. A contract is very strong evidence that there was a meeting of the minds. The only time that a contract is not a meeting of the minds is if there is a substantial misunderstanding by one or both of the parties of the subject of the contract. That wasn't the case here. The original poster understood exactly what he was getting and chose to back out when his personal circumstances changed after the contract was signed.

And BTW, mutual promises constitute sufficient consideration for a contract. :)

ScottGem · Aug 1, 2006, 08:22 AM

While Chuck makes some good points, the FACT of the matter (based on the information provided) is that a contract was entered into (the Lease). It appears the landlord acted in good faith and the apartment was ready for occupancy according to the terms of the lease. Therefore, the prospective tenant is in breach of that contract. The only wiggle room here is whether the landlord had a right to enter into such a contract. But the fact that it was put in writing and signed would indicate she was.

Those are the legal issues and I don't believe, as Lisa points out, that there is any doubt about that.

However, there are several questions, as Chuck points out, about what can or will happen next. Whether the landlord will proceed with legal action and in what venue is an open question. Whether a judge will award full remuneration is another open question. A judge might decide one months rental is sufficient.

The question is whether you want to risk that as well as deal with the time involved. Best to offer to settle for 1 month's rent.

brooks · Aug 1, 2006, 08:59 AM

I have re-thought my position on the amount that has to be tendered to the landlord. The original amount should have been for 1150.00 Since the leasee will be giving notice, the last months rent can be considered a deposit and should be returned in full if tendered. So the leasee would have to lease and give a notice of vacating at the same time. On consideration, If one were to take the explanation given here there would be no such thing as a rental contract anywhere because one could back out at anytime prior to possession

In this case, the consideration comes about by way of possession. A couple of notes about possession.

POSSESSION - A person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it. [More than one person can be in possession of something if each knows of its presence and has the power and intention to control it.

The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may also have sole possession or joint possession.

A person who has direct physical control of something on or around his person is then in actual possession of it.

A person who is not in actual possession, but who has both the power and the intention to later take control over something either alone or together with someone else, is in constructive possession of it.

If one person alone has possession of something, possession is sole.

If two or more persons share possession, possession is joint.

The tenancy agreement is a contract between a tenant and a landlord. It may be written or oral. The tenancy agreement gives certain rights to both tenant and landlord, for example, tenant's right to occupy the accommodation and the landlord's right to receive rent for letting the accommodation.

ScottGem · Aug 1, 2006, 09:46 AM

Originally Posted by brooks

Sorry fella's but I again will have to disagree with all on two major points. The contract was for first and last month's rent plus a 200 deposit. I am sure that the lease would probably have a 30 day notice clause. So the leasee would have to lease and give a notice of vacating at the same time. The check would be for 950.00 not 450. The deposit would be void due to the fact that possesion was never had.

In this case, the consideration comes about by way of posession. A couple of notes about posession.

A person who is not in actual possession, but who has both the power and the intention to later take control over something either alone or together with someone else, is in constructive possession of it.

We don't disagree that it appears a valid lease was entered into. However, I don't know if a judge would award first AND last month rentals if the person never moved in. Assuming a 30 day notice, then only one month rental would be due. Awarding 2 months would seem to me an overstep and more punitive. That doesn't mean a judge wouldn't do it. It appears that Greenducky may not have acted in goodfaith by continuing to look for another apartment after signing a lease. That might weigh on a judge's decision, especially in Small Claims court.

Bottomline here is that it appears a valid contract was entered into. That gives the landlord solid footing in any legal venue. Whether they can recover more than 1 month rental is debatable, but I don't think there would be any problem in getting a judgement for the one month.

brooks · Aug 1, 2006, 10:04 AM

John did not indicate where he is located, but in certain states asking for more than twice the amount of rent would be considered an invalid contract. Since the rent is for 450.00, it could be that requiring 1150 may be a reason to invalidate the lease agreement.

RickJ · Aug 1, 2006, 10:37 AM

Originally Posted by brooks

in certain states asking for more than twice the amount of rent would be considered an invalid contract.

Terms like that within a contract do not invalidate the contract... they are just unenforceable terms.

brooks · Aug 1, 2006, 11:18 AM

Rick, I stand corrected, I should have said that if the landlod were to try to enforce an illegal clause the tenant can sue for damages. In some states that would include penalties equal to or exceeding the months rent and may also include attorney fees. In this case it would zero everything out.

Got to go! :eek:

CaptainForest · Aug 1, 2006, 12:19 PM

At most, you would be responsible for 1 months rent, which is 495.

However, Exon and Fr Chuck make very good points that you should consider.

First, as they said, talk with HER landlord about whether she can sublet or not.

If she does take you to court, use Fr Chuck's advice and fight her in court. If you lose in court, all you will have to pay is 495 (1 months rent).

ScottGem · Aug 1, 2006, 12:38 PM

Originally Posted by CaptainForest

At most, you would be responsible for 1 months rent, which is 495.

However, Exon and Fr Chuck make very good points that you should consider.

First, as they said, talk with HER landlord about whether she can sublet or not.

If she does take you to court, use Fr Chuck's advice and fight her in court. If you lose in court, all you will have to pay is 495 (1 months rent).

While I think that is the most likely scenario, its not a guarantee. I agree that you should contact her landlord, but, as I said earlier, I doubt if she would have a written lease if it was not allowed.

If you wait to go court, you will be losing the time involved in a court case as well as the potential stigma of having a judgement entered on your credit record. And you would very likely still have to pay at least the one months rent.

So I stand on my recommendation to settle. If you want to try and call her bluff about taking you to court, you can. But if she does, then I would quickly settle.