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MDLawyer
MDLawyer, Lawyer
Category: Landlord-Tenant
Satisfied Customers: 6133
Experience:  10 years in legal practice. Over 5 years in advising clients on landlord/tenant issues, including on a pro bono basis.
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I need help!! In August 2015, my tenants signed a new 2 year

Customer Question

I need help!!
In August 2015, my tenants signed a new 2 year lease. On Feb 29, 2016 she emailed 30 days notice to terminate the lease citing Service-members Civil Relief Act (husband is in the military) and their last day would be 3/31/16. They did not have their possessions removed until April 1 and the cleaners and painters came the 2nd and 3rd. On April 5th, we were supposed to meet to do a walk-through and they return the keys, clickers, etc. They did not show. I received an email from the tenant that day stating they tried to get into the home to remove the garbage they left inside but since they had the power turned off, they could not access the house. They also stated they locked the keys in the house and went out the garage instead of taking them to the property manager as requested. I did not have possession of the home until April 6th, when I had to have the power turned on to gain access to the home. I reached out to an attorney on this site and was told that since there is no holdover in the lease and since they stayed one day into April, that I could charge them for the full month of April's rent and deduct that from the security deposit, per Colorado Security Deposit laws. I am now being threatened by my former tenant (who is a real estate attorney) stating:
Under SCRA (Service-members Civil Relief Act) 50 U.S.C. App ss 535 (h) holding a security deposit of a service member or a servicemembers's dependent for the purpose of subjecting or attempting to subject any of such property to a claim for rent accruing subsequent to the date of termination of sh lease shall be fined as provided in title 18, United States Code, or imprisoned for not more than one year, or both. Additionally, Colorado law allows recovery of three times the deposit amount due to Landlord wrongfully and willfully withholding the Deposit. Per Federal and State law, they agree to pay for one day in April 2016. If we do not accept this settlement that they are prepared to file suit in Douglas County, Colorado and see all damages available under the law, including treble damages and attorneys fees.my lease states the following under "Holdover"; If tenant maintains possession of the Premises for any period after the termination of this Lease ("Holdover Period"), Tenant shall pay to Landlord lease payment(s) during the Holdover Period at a rate equal to the most recent rate preceding the Holdover Period. Such holdover shall constitute a month-to-month extension of this Lease.Do I have the right to charge a full months rent since they stayed into the following month or do I have to prorate rent? I did not agree to let them stay April 1, as she stated in her demand letter. Can I be sent to jail and fined triple damages from withholding her security deposit since the husband is a service member? There were also damages to the home that I am trying to seek repayment since I had to have repaired they they are also contesting......PLEASE HELP!!!
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  MDLawyer replied 1 year ago.

Hello and thank you for using the Just Answer website. I am happy to help.

Just to make sure that I understand your question, let me recap. You are in Colorado and your tenants left their lease early due to military orders. They did not remove their possessions out of the home until April 1st and you did not receive the keys until April 6th. Is this part correct?

You are wanting to know if you are allowed to charge them rent for the entire month of April or whether you have to pro-rate the rent?

Customer: replied 1 year ago.
That is correct. She is citing federal and state laws that I need to prorate the rent for the days she occupied the home in April (shes stating the 1st, when their movers actually removed their items from the home).
Expert:  MDLawyer replied 1 year ago.

What statute did she cite in her letter with respect to the pro-rating?

Customer: replied 1 year ago.
she didn't cite a statute regarding prorating; this is exactly what she states:
In total, as per Federal and State Law, we agree to pay $103.34 for one day in April 2016 rent charges and $50 of the billed charges. Our security deposit was $3100. Please mail the remainder $2946.66 to....... We prefer to resolve this matter out of court. If you do not accept this offer of settlement, be advised that we are prepared to file suit and seek all damages available under the law.
Customer: replied 1 year ago.
She did cite SCRA 50U.S.C. App 535 (h) holding a security deposit of a service member (as in the original question)
Expert:  MDLawyer replied 1 year ago.

Thank you for the additional information. I apologize that the previous expert did not give you correct information. The SCRA clearly states that you cannot charge any rent AFTER the effective date of termination. The effective date of termination in this case is March 31st because SCRA states that the termination date is the end of the next month after notice is given. Therefore, while you can deduct damages from the security deposit, you cannot deduct for any rent after March 31st.

Therefore, to answer your question, the SCRA prohibits you from charging any rent at all after March 31st and so you cannot charge for April rent at all. I'm not sure what the $50 of billed charges that are referred to. Here is a question for you. It is May 26th and they moved out over a month ago. Is there a reason they have not already received their security deposit? Colorado law requires you to have returned it by the end of April.

Customer: replied 1 year ago.
Are you serious?? YOU are the one that stated that even if they stay one day into April, a full month rent could be charged. Their security deposit was withheld because they stayed into April. I was very clear with you that they were breaking the lease citing SCRA. The $50 is what they were claiming as damages. The real amount was over $700 but we were being very nice and the real damages were over $1200. So to summarize....the information you previously gave me was incorrect and I can now be sued for triple damages. Thanks!
Expert:  MDLawyer replied 1 year ago.

No, I did not give you that information.

Customer: replied 1 year ago.
if they were still in my house and had not vacated, I could not charge them rent for the additional days they stayed after the lease?
Expert:  MDLawyer replied 1 year ago.

I stated that Colorado law allows you to deduct unpaid rent from the security deposit which it does. However, the SCRA is federal law and supercedes state law.

Customer: replied 1 year ago.
You did not state that anywhere in your response to my question on April 1.
Expert:  MDLawyer replied 1 year ago.

Your initial question stated that they gave you 30 days notice via email. You never stated that they gave you written notice under SCRA. The SCRA requires written notice and an email is not proper delivery. That is why I gave you the information on Colorado law.

Expert:  MDLawyer replied 1 year ago.

In your initial email you stated that you were in Colorado and that your tenant had not yet moved out. You also stated that they emailed you that they would need to move out but there was nowhere where you stated they gave you written notice under SCRA. That is why I gave you the information about Colorado law.

Expert:  MDLawyer replied 1 year ago.

Written notice as required by SCRA is what triggers the federal law.

Expert:  MDLawyer replied 1 year ago.

Unless you withheld their security deposit without telling them, you don't need to worry about getting sued. Back to my previous question, is there a reason that you failed to return their security deposit or was their rent more than the security deposit and that is why you did not return it? Did you send them a letter within the 30 day timeframe?

Customer: replied 1 year ago.
We sent a letter within 30 days stating security was being withheld to pay for April rent (since they stayed in April) and sent a copy of the receipt for the damages that were repaired asking them to pay the additional invoice. They contested the invoice and said we wrongfully withheld security.
Expert:  MDLawyer replied 1 year ago.

And they never sent you actual written notice with a copy of the military order? All they gave you was an email ?

Customer: replied 1 year ago.
She emailed me the letter of relocation on March 24th
Expert:  MDLawyer replied 1 year ago.

Well it sounds like she did not follow proper procedure and that is probably why she is saying that she is willing to pay that one day of rent. SCRA requires written notice (email is not proper notice) and that a copy of the orders be given to the landlord. Honestly, if you wanted to get into a debate with her, you could make the argument that the effective date of termination would actually be April 30th since she didn't give you a copy of the orders until March 24th. However, this former tenant sounds like she simply enjoys being a bully and if I were in your situation, I would simply cut my losses and try to negotiate with her just a little bit if she indeed caused $700 in damages. It never looks good to nickel and dime a service member especially if you happen to live in an area where there is a lot of military.

Expert:  MDLawyer replied 1 year ago.

What was the $700 in damages that you referenced?

Customer: replied 1 year ago.
on feb 29th, she emailed me stating they were told several months previous they were being relocated. I did not receive the orders until March 24th after asking several times. She did not send the order received "several months ago", just the final orders dted March 24th.
Expert:  MDLawyer replied 1 year ago.

What was the $700 in damages that you referenced?

Customer: replied 1 year ago.
The $700 was fees for cleaning ovens, refrigerators, landscaping issues they were responsible for, paint over the touch-up she had done that didn't match the rest of the house. I have pictures and an invoice and copy of what was paid as proof of damages.
Customer: replied 1 year ago.
She is a bully and also (after I told her I didn't want ax service done) convinced me I had to have it done and deducted it from the rent. Same with landscaping issues....Per the lease, they were responsible but she is citing the previous lease, where it was landlords responsibility. That's what I'm dealing with. My brother is in the service so I'm sympathetic however, my home is still I rented causing me damages because they broke the lease early.
Customer: replied 1 year ago.
ac service
Expert:  MDLawyer replied 1 year ago.

Okay, to be honest, that sounds like normal wear and tear and $700 seems excessive for cleaning. Courts generally require damage and not just dirt. Courts also won't charge for painting, generally, since they consider that a place needs to re-painted usually when a tenant moves out.

Unfortunately, although it is frustrating that they did not give you more heads up considering they knew orders were coming way in advance, federal law protects those in the military by allowing them to break leases since part of the nature of being in the military is constantly moving from place to place.

Expert:  MDLawyer replied 1 year ago.

It sounds like she is one of those attorneys who gives us a bad name. Bullying is wrong no matter who does it.

Customer: replied 1 year ago.
This was my question on April 1 ;
My tenants signed a 2 year lease in August 2015. On February 29, 2016 I received an email from them stating the military was relocating them and even though they knew for several months, gave 30 days notice citing the service members act....They were supposed to vacate my home today.What is the defination of "proper notice" when breaking the lease if you are a service member? If they were supposed to send the orders with written notice (not email as you stated), then the official notice would have been March 24th which would have terminated the lease on April 30, 2016. Is that correct?
Expert:  MDLawyer replied 1 year ago.

Proper notice under the SCRA is written notice. Email is not considered proper notice. Additionally, they are required to provide you with the orders. You have stated today that you asked them repeatedly for a copy of the orders but that she did not provide them to you until almost a month later.

Yes, that is correct. That is the letter of the law. However, keep in mind that courts also go by the spirit of the law. If I were to speculate, my guess would be that she knows that she failed to give proper notice as required by the letter of the law which is why she is agreeing to pay 1 day of April rent. Otherwise, if she were going by proper notice under the SCRA, she would not owe for April rent.

Customer: replied 1 year ago.
cleaning, painting and landscaping that was not kept up per the terms of the lease. The painting was because they had a lot of holes for drapes that were hung, pictures, mirrors, tv's etc. This is a custom house with custom paint- The touch up paint used did not match and the holes were not properly prepped before painting as well as murals left on the walls in 2 bedrooms that were put up without permission on a 4200 sq ft house, the fee we paid was very reasonable considering the damage in each and every room. They did not get permission to put murals on the walls and were required to return them to the same color as when it was rented to them. how can this be considered normal wear and tear?
Expert:  MDLawyer replied 1 year ago.

For security deposit purposes though, you cannot deduct for breach of the lease. You can only deduct for damage and the cost of repair. Ultimately it is up to you whether you want to risk going to court or not for those issues. From my own personal experience, my guess would be that the damages were maybe more than $50 but less than $700. Without looking at video or pictures, I can only speculate. Like I stated previously, the best case would be to either accept her terms or negotiate for better terms.

Customer: replied 1 year ago.
would this apply in any way? SCRA-
(c) Manner of termination.
(1) In general. Termination of a
lease under subsection (a) is made —
21
(A) by delivery by the lessee
of written notice of such
termination, and a copy
of the servicemember's military orders, to the lessor (or the lessor's grantee), or to the
lessor's agent (or the agent's grantee); and
(b is for motor vehicles and does not apply)
2) Delivery of notice. Delivery of
notice under paragraph (1)(A) may be
accomplished —
(A) by hand delivery;
(B) by private business carrier; or
(C) by placing the written
notice in an envelope w
ith sufficient postage and
with return receipt requested, and addre
ssed as designated by the lessor (or the
lessor's grantee) or to the lessor's agent
(or the agent's grante
e), and depositing the
written notice in the United States mails.
(d) Effective date of lease termination.
(1) Leases of premises. In the case of
a lease described in subsection (b)(1) that
provides for monthly payment of rent, termin
ation of the lease under subsection (a) is
effective 30 days after the first date on whic
h the next rental payment is due and payable
after the date on which the notice under subsecti
on (c) is delivered. In the case of any other
lease described in subsection (b)(1), terminati
on of the lease under subs
ection (a) is effective
on the last day of the month following the
month in which the notice is delivered.Since we received the actual orders March 24, would the lease end April 30? Or since proper notice was not given, is she still liable for rent until proper notice is given?
Expert:  MDLawyer replied 1 year ago.

I can't tell what section you are quoting (SCRA is over 40 pages) and so I can't answer if it applies. I would need an actual citation. I can tell you that the SCRA under Section 535(c) requires written notice as I've stated and the notice must be proper.

If you were going by the letter of the law, as I previously stated, yes. However, since you acknowledged receipt of the email and acted as if you were given proper notice, the spirit of the law might say otherwise.

Customer: replied 1 year ago.
This just doesn't seem fair that there is no protection for landlords in when they rent their homes to service members- I do not think this was the reason these laws were written. no one is going to want to rent their homes to service members since they can do what they want without consequence. this is sad.....
Expert:  MDLawyer replied 1 year ago.

It is actually against the law to not rent to someone because they are active military. There is protection in that you still have the right to charge them for damages. Most do not abuse the rights given to them but unfortunately, it seems that you came across a bully with respect to his wife and that is unfortunate but it would also be unfortunate if you allowed it to taint your view of all members of the military.

Expert:  MDLawyer replied 1 year ago.

I about to head out for the rest of the day. Please let me know if there is anything else that you need.

Customer: replied 1 year ago.
Im sorry I didnt hit send;Under SCRA 50 U.S.C. §535 section 305 (c) manner of termination: (1) In General. Termination of a lease under subsection (a) is made (A) by delivery by the lessee of written notice of such termination, and a copy of the service members military orders, to the lessor (or the lessor’s grantee), or to the lessor’s agent (or the agent’s grantee); and (B) in the case of a lease of a motor vehicle, by return of the motor vehicle by the lessee to the lessor (or the lessor’s grantee), or to the lessor’s agent (or the agent’s grantee); not later than 15 days after the date of the delivery of written notice under subparagraph (A). (2) Delivery of notice; Delivery of notice under paragraph (1)(A) may be accomplished —
(A) by hand delivery; (B) by private business carrier; or (C) by placing the written notice in an envelope with sufficient postage and with return receipt requested, and addressed as designated by the lessor (or the lessor's grantee) or to the lessor's agent (or the agent's grantee), and depositing the written notice in the United States mails. (d) Effective date of lease termination. (1) Leases of premises. In the case of a lease described in subsection (b)(1) that provides for monthly payment of rent, termination of the lease under subsection (a) is effective 30 days after the first date on which the next rental payment is due and payable after the date on which the notice under subsection (c) is delivered. In the case of any other lease described in subsection (b)(1), termination of the lease under subsection (a) is effective on the last day of the month following the month in which the notice is delivered.These are the questions I have~
~Does this mean they had 15 days from the day THEY received initial notice of relocation to notify us (notice they received "months prior" as stated in the email they sent on February 29)?
~Notice to terminate the lease must have been in writing and delivered personally and not via email?
~if the written orders were not received until March 25, does the 30 days notice begin after the receipt of the orders therefore the lease is term'd April 30?Thanks!
Expert:  MDLawyer replied 1 year ago.

~Does this mean they had 15 days from the day THEY received initial notice of relocation to notify us (notice they received "months prior" as stated in the email they sent on February 29)?

No. That 15 days has to do with motor vehicles and not residential leases.

~Notice to terminate the lease must have been in writing and delivered personally and not via email?

Correct. Email is not proper notice under the letter of the law.

~if the written orders were not received until March 25, does the 30 days notice begin after the receipt of the orders therefore the lease is term'd April 30?

Under the statute, proper notice is given when they send you written notice and a copy of the orders and it's effective 30 days after the first date on which the next rental payment is due. For example, if we assume that rent is due at the first of the month. If notice is given in February, the effective termination date would be March 31st. If notice is given on March 25, the effective termination date would be April 30th. Remember though that the spirit of the law will be looked at by a court as well. Therefore, if you acknowledge receipt of the notice via email and you do not say anything about the fact that they did not give you a copy of the orders, the court might still go by the email. It would be different if you told them that you did not recognize it as official until they gave you a copy of the orders which doesn't seem to have happened here.

Customer: replied 1 year ago.
I expected the orders immediately since she noted in her email on Feb 29th that they already received orders. The orders were not dated until March 23 and I did not receive them until March 25. I asked her for orders 3 different times before she sent them and as far as I was concerned, they were not out of the lease until I received them, which is why I asked so many times for the orders she said she received "several months ago" in Feb.
Expert:  MDLawyer replied 1 year ago.

If you told her in writing that you were not letting her out of the lease early until she gave you a copy of the orders, then you are covered. Otherwise, if you agreed that March 31st would be the termination date, then that would be more of a gray area and not so black and white.

I will be unavailable the rest of the evening but I will be around in the morning for a bit. Please let me know if there is anything else that you need clarification on. Thank you in advance for your positive rating as that is the only way that we get credited and compensated for the time spent assisting customers such as yourself.

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