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legalgems
legalgems, attorney
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I moved into an apartment place that had excessive noises. I

Customer Question

I moved into an apartment place that had excessive noises. I suffered sleep deprivation as a result. The management sent out notices admitting excessive noises and reminded tenants to be respectful. But the noise condition did not improve and management offered me to break the lease early without any penalty. I found another place the next day and a few days later, I let them know I had moved out. The attorney for that property company later asked me if I wanted to accept or reject the offer and that the move out statement needed to be sent out within 14 days after I surrendered possession and that a mutual rescission needs to be executed before the move-out statement goes out. I informed her that I was willing to enter into a mutual rescission. But it was more than a month after I moved out and I still did not receive the move-out statement.Today, I just received a copy of mutual rescission. One of the terms is to waive my rights to sue them. Another one is security deposit that says if the unit was damaged before normal wear and tear, I must pay the damages. What if they intentionally damaged the apartment after I moved out, so if I sign that mutual rescission waiving my right to sue them, I can't sue them for the damages if they intentionally did. Should I ask for copies of the conditioning of the unit before I sign the mutual rescission?? What else do I need to do to protect myself?Why are they offering the mutual rescission, is it because they knew that they would not win in court? That management company had "F" rating on Better Business Bureau and received hundreds of negative complaints by tenants across the United States.
Submitted: 19 days ago.
Category: Landlord-Tenant
Expert:  legalgems replied 19 days ago.

Good Day!A few minutes please as I review your question so I can provide you with legal information. Thanks!

Expert:  legalgems replied 19 days ago.

I am sorry to hear this; mutual rescission means both parties agree, voluntarily, to terminate the lease. That is standard in residential real estate when the landlord and tenant agree to cancel the lease. It means both parties agree, and the landlord cannot sue for future rent; and the tenant cannot claim the landlord breached the lease- because both parties agreed to relieve one another of obligations under the lease.

As for the security deposit-it is standard to deduct for damages that exceed normal wear and tear. One can always request a walk through and then have the landlord sign off on the condition of the apartment, and then sign the statement re: the security deposit.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Customer: replied 19 days ago.
1) The management previously said that the mutual rescission needs to be executed and signed before the move-out statememt can go out. I assume the move-out statement includes the security deposit part, is this correct?
2) If the security deposit is $200, can they request more than $200 damage fee? I left the unit in the same condition as I received it, but they may falsely claim damage here and there and if they say the damages are worth $5000, then does it mean I need to pay $5000 in addition to the security deposit of $200?
3) The mutual rescission said I can not sue them, but what if they falsely claim the damages inside the unit in the move-out statement, can I still bring a lawsuit against them? The property management company has F rating by Better Business Bureau and had hundreds of negative complaints. I would not be surprised if they are nasty about the security deposit and I would not be surprised if they faksely claim damages here and there.
4) What if they refuse to provide me with a conditioning of the apartment before I sign the mutual rescission? I do not feel safe doing a walk-through with them but just want to get a conditioning of the unit so that after I sign the mutual rescission, they can not make false claims trying to asking me to pay for damages inside the unit. Are there any laws that require them to comply with the request to provide me with a copy of conditioning of the unit?
5) I suffered from sleep deprivation as a result of the noise and the management admitted in writing that there was excessive noise in the community. If I don't sign the mutual rescission, how much can I sue them for?
6) The company hired an attorney to do the mutual rescission and other communications for my case, if they include the attorney fees in the move-out statement, I don't need to pay because attorneys fee need to be paid only if they win in court, is this correct?
Expert:  legalgems replied 18 days ago.

There is no legal requirement that the mutual rescission needs to be executed before the move out statement; and yes the move out statement includes the security deposit part. These can be done on the same day.

Yes, they can request more than the security deposit; if there are additional damages, they can sue in small claims for any money. It is always a good idea to take pictures when one vacates so there is evidence of how the unit was left; one can request permission to enter in order to take these pictures.

If the mutual rescission has a waiver, then one could attempt to get it voided based on fraud but that is difficult so it is best to only sign a waiver re: suit after viewing the apartment.

I'm not sure what you mean by conditioning of the apartment.

Any sleep deprivation issues generally need to be resolved while the tenancy is still valid in the form of reduced rent so it is not likely a judge would allow recovery now. One can sue for reimbursement for back rent, and the idea is the difference between the fair rental value of the unit with the noise, and the rent actually paid. If they admitted their was excessive noise then the judge may allow it but typically this is done when the tenant still occupies the unit.

Yes that is correct about attorney fees-only if the court orders it must a person pay those fees.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Customer: replied 18 days ago.
in Arizona, there is no law that requires mutual rescission be executed and signed before the move-out statement can be sent?? Can you confirm? If so, the lawyer for that property management lied and it seems to me they want me to sign the mutual rescission first and then get some money back by claimimg damages here and there.
Even in the lease, it says the move-out statement needs to be sent within 14 business days ( about 3 weeks) after vacating. They admitted I vacated on that *** date in November but it has been more than 6 business weeks. So is this a violation on their part?
Given the fact that they put that in writing saying I can vacate the apartment without penalty and just to let them know if I would like to move out, and the fact that I did move out (as the noises were causing sleep deprivation) a few days later, do I now have the option of not signing the mutual rescission because they already put the first offer in writing ( move out without penalty, let them know, etc) and I already completed this step??
"The parties agree that Resident tendered a refundable security deposit in the amount of one hundred dollars at the commencement of her tenancy. Management has provided an accounting to Resident of the condition of apartment, consistent with the requirement of A.R.S. 33-1321. In the event that the unit was damaged beyond normal wear and tear Resident shall tender payment to compensate Management for any damage beyond normal wear and tear." What does she mean by " providing an accounting to Resident of the condition of apartment"???? Does she mean a list of the damages or conditions of the unit after I moved out? I have not received any accounting of the conditioning yet.
Expert:  legalgems replied 18 days ago.

I have reviewed the statutes and could not locate any statute that requires a mutual rescission to be executed and signed before the move out statement can be sent; you may want to ask them what statute they are citing.

Yes, the LL must comply with statutory requirements re: the security deposit:

Failure to do so results in the tenant recovering double damages:

. Within fourteen days, excluding Saturdays, Sundays or other legal holidays, after termination of the tenancy and delivery of possession and demand by the tenant the landlord shall provide the tenant an itemized list of all deductions together with the amount due and payable to the tenant, if any. Unless other arrangements are made in writing by the tenant, the landlord shall mail the itemized list and any amount due, by first class mail, to the tenant's last known place of residence.

E. If the landlord fails to comply with subsection D of this section the tenant may recover the property and money due the tenant together with damages in an amount equal to twice the amount wrongfully withheld

The relevant time period is termination of tenancy and delivery of possession (so when the tenant officially vacates the unit).

A mutual rescision is completely voluntary - there is no requirement that one sign it; normally it is signed when both parties agree to terminate the tenancy so that it stops any obligations under the lease.

Yes, per the above statute the landlord must provide an accounting as to any damages they would be deducting from the deposit or billing the tenant for - beyond ordinary wear and tear because they can't charge for that.

If they failed to provide an accounting within the time frame, per section F of the statute, they can still seek recovery (for example, suing in small claims court for damages) but the tenant is entitled to double damages for any deposit money wrongfully withheld.

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(no additional charges are incurred).

Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Customer: replied 18 days ago.
Hi, I understand the mutual rescission is voluntary. But in my case, they said they if I don't sign the mutual rescission, then they will need to include the early lease termination fee of 2-month rent. However, prior to that, they said I could move out without penalty before end of November and simply let them know, which I already did by lettimg them know promptly and moving out. So now, even if I don't sign the mutual rescission, do they have the legal right to charge early move-out fee of 2 month rent???? Can I sue them for fraud if they charge early termination fee in this case if I will not sign the mutual rescission ( again I moved out back in November after they wrote to me I could move out without penalty)???? I need to know this before I make decision on whether to sign or not.
Expert:  legalgems replied 18 days ago.

So long as there is documentation that permission was granted to move out without penalty-that will be binding in a court of law; so if they do sue for rent after the termination date, so long as one has proof that there was consent to early move out, there would be no need to sign a mutual rescission since the rescission already occurred via the written acknowledgment.

Customer: replied 18 days ago.
is the following sufficent in terms of written acknowledgement:
" Management has previously advised you that if you are unhappy at xxxx, they are quite prepared to enter into a mutual rescission under which you may vacate your apartment without penalty and find another community where you feel safe or more comfortable........ If you would like to move, please notify management promptly and we can arrange to terminate your lease on or before xxxx"
Is the above written acknowledgment sufficient that I don't need to sign the mutual rescission (which includes terms of waiving the early move out termination)?
Expert:  legalgems replied 18 days ago.

So long as there is an indication that the offer was accepted - i.e that the tenant would vacate without penalty.

Expert:  legalgems replied 16 days ago.

I will be out of the office for the next several days on a personal leave; if you have any questions on the above please post here today and I will respond; otherwise I will respond as soon as I return.

It has been a pleasure to assist. If the information has been useful kindly rate positive so the site may credit my account for my time spent assisting you. Thank you.

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