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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 114029
Experience:  Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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Unlawful detainer. need clarification please. landlord filed

Customer Question

unlawful detainer. hello, need clarification please. landlord filed 3 day notice to pay rent, on the exact date of landlords written deadline initiated by a 'termination of tenancy' without cause, and he immediately filed UD on the 3d day after service
of notice. We are seniors, and Landlord knew we needed all available funds to move as demanded, No way we could move in 3 days. we moved out of the house on sept 30, exactly two weeks after landlord's deadline, but not before landlord started eviction. BECAUSE
notice to pay or quit states that if we pay within 3 days we avoid legal action. But in our case, even if we paid, Landlord stated she would re-file again and again until we were out of the house. She knew we would be out on the 30th. QUESTION: given that
payment to resolve 3 day notice would not result in
Submitted: 1 year ago.
Category: Real Estate Law
Customer: replied 1 year ago.
our continuance as tenants, shouldn't landlord count $1500 in deposit ($1350 rent) as payment, especially since we vacated property within 2 weeks of deadline to move? we had an early inspection that showed no damage to property.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Whether or not the landlord accepts the security deposit in lieu of rent due is up to the landlord's discretion, as the law says the security deposit is for damages (which can include damages for breach of lease). So, if the landlord chooses, they can keep the deposit for your breach of the lease for failure to pay rent and can pursue you for any rent due in court. Your failure to pay rent was a breach of the lease, so it is up to the landlord to agree to take the security deposit towards rent or to pursue the rent due separately.
California Civil Code Section 1950.5 only permits a landlord to use a tenant's security deposit to pay for the costs of: (1) unpaid rent; (2) cleaning the rental unit after you vacate (but only to what it was before you moved in); (3) repairing damage caused by the tenant that goes beyond normal wear and tear; and (4) if provided in the lease, replacing keys, laundry cards, garage openers, etc. California law does not permit a tenant to use his or her security deposit as a replacement for paying the last month's rent. If the lease states that the tenant paid first month's rent and "last month's rent" and a security deposit, then the tenant is relieved of paying the last month's rent.
However, the landlord had to give you written notice of his intent to keep your deposit for breach of the lease within 21 days of the termination of your tenancy and if they fail to do so then they cannot keep any of the deposit and must return that deposit to you and if they do not do so, you can seek up to two times the amount of the deposit in small claims court from the landlord.
Customer: replied 1 year ago.
thanx again for your input. clarification, please.
"the landlord had to give you written notice of his intent to keep your deposit for breach of the lease within 21 days of the termination of your tenancy and if they fail to do so then they cannot keep any of the deposit and must return that deposit to you" does that mean when we actually vacated (9/30) or the date the landlord gave for termination of tenancy (9/15)? can i use this as part of affirmative defense?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply
He had 21 days from date you actually vacated to give you notice. If he did not send the written notice required, it is not an affirmative defense, it is a counterclaim allowing you to seek double the deposit back as a penalty.
Customer: replied 1 year ago.
i would like to figure out some questions before calling, will ;you still be available in about an hour or less?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
I am sorry, I have spent my entire Sunday online here and it is now dinner time, so I am afraid that I will not be back online until tomorrow morning about 7AM.
Customer: replied 1 year ago.
have a great dinner, enjoy your family with blessings
should i return to this site tomorrow after 7AM california time to pick up on this? I have to be at trial this tuesday, but will file request for continuance and motion to set aside judgement Monday afternoon.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
I am online now and will be online pretty much all day and evening. Let me know, I will send you a phone request offer and you can accept it and then send me a reply when you do.
Customer: replied 1 year ago.
URGENT, hello, we went to trial, judge stated not UD case and referred us to case management. how can we get the restricted access 1161.2 extended? we go to case management in March, 2016 and don't want eviction on public notice--for 7 years. how do we respond with statement for case management, what should i next do? what should we do to prep for effective phone meeting w/you?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
I am sorry for the delay, I am out in a court today and a client meeting Saturday. I will let you know Monday what time we can speak if you need to speak.
If you need access to the records you can ask the clerk of court for that access. If you are set up for case management then there is nothing you can do to speed that up I am afraid. You need to really begin negotiating with the landlord now to try to settle the case before the case management meeting to get this over.