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socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 38117
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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We had a tenant. there was mold. we put her in a hotel,

Customer Question

we had a tenant. there was mold. we put her in a hotel, bought a new bed etc and repaired the house. we let her out of the lease. she moved back in anyway and her dogs ruined the place. She wants her deposit back along with money for her pain and suffering. Is she entitled
Submitted: 10 months ago.
Category: Real Estate Law
Expert:  socrateaser replied 10 months ago.

Hello,

I'm having some difficulty understanding the facts. You say that the tenant was released from the lease, but "moved back in anyway." Did the tenant enter into new lease, or did she enter the property without permission?

If she entered without permission, then did you or the property manager accept rent from the tenant?

Thanks in advance.

Customer: replied 10 months ago.
No she was just released from her obligation of a lease. She chose not to terminate the lease. My point is does she have a valid complaint against us since she chose to continue living there and we honored all requests to clean and fix the problem.
Customer: replied 10 months ago.
we have an ineffective property manager who has been less than forthcoming with this information
Expert:  socrateaser replied 10 months ago.

If the tenant returned to the property, which was repaired, then she is obligated to continue under the original lease terms. She would only be entitled to her deposit if the lease terminates as originally agreed, and the property is returned to you in the condition it was originally provided -- except for ordinary wear and tear.

Concerning pain and suffering, if the tenant can prove that she has actually suffered a personal injury as the result of your failure to maintain the property in reasonable condition, and that your failure was negligent, rather than simply the result of your having no knowledge of the mold infestation, then the tenant could prevail in an action against you.

But, proving negligence is a very difficult thing to do. The tenant would need an expert witness (environmental engineer) to testify both to the danger of the mold infestation as well as a physician to testify to the tenant's injuries or illness, and the connection to the infestation.

Moreover, the tenant would have to show that the infestation was patent (visible), such that you should have known of the problem and remedied it before the tenant became ill or injured.

Very, very difficult to prove, especially without hiring a lawyer to represent the tenant in court.

Bot***** *****ne, the answer is yes, the tenant could have a claim -- but, if she thinks she will be able to win in small claims court without a lawyer, then I suggest that she will find the necessary proof nearly insurmountable.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, the website retains your entire payment, and I receive nothing for my efforts in your behalf.

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Customer: replied 10 months ago.
Doesn't the fact she moved back in invalidate her claim of the the mold making her sick
Expert:  socrateaser replied 10 months ago.

It is a defense to a negligence claim that a person who knowingly "assumes the risk" of injury, cannot hold another person liable for the injury that occurs. But, this is a question of fact for a judge or jury. California is a "comparative negligence" jurisdiction. This means that the tenant could be 99% comparatively negligent for her own injury, and you could still be liable for 1%.

The point is that it's not an all or nothing proposition. The judge or jury is authorized to balance the relative fault of each party.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, the website retains your entire payment, and I receive nothing for my efforts in your behalf.

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Customer: replied 10 months ago.
My question that has not been answered is this:
the tenant moved in. we complied with every request. We put her up in a hotel, bought her a new mattress, new bedsprings and frame (she didn't have a frame before) and we then released her from her lease. She moved back in and is now saying she wants her full deposit back (she left the place a mess she had 3 dogs and a bird we did not authorize)along with $300 for damages done to her stuff. She is claiming pain and suffering. Our property manager has dragged this out for 3 weeks "negotiating" with her. My question is since she moved back in for a month is she entitled? Also our property manager will not give us the keys unless we pay him 252. I'm not sure for what and he won't let anyone on the property Its a mess I hope you can help.
Expert:  socrateaser replied 10 months ago.

My question is since she moved back in for a month is she entitled?

A: Cal. Civil Code 1950.5(b) provides four specific purposes for which a security deposit may be used: "(1) The compensation of a landlord for a tenant’s default in the payment of rent; (2) The repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant; (3) The cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy. The amendments to this paragraph enacted by the act adding this sentence shall apply only to tenancies for which the tenant’s right to occupy begins after January 1, 2003; (4) To remedy future defaults by the tenant in any obligation under the rental agreement to restore, replace, or return personal property or appurtenances, exclusive of ordinary wear and tear, if the security deposit is authorized to be applied thereto by the rental agreement."

Although Section 1950.5(b) generally permits a security deposit to be used for "any purpose," no California appellate court case, to my knowledge has ever permitted a security deposit to be used to pay damages for "pain and suffering." I very much doubt that the tenant would be permitted to use Section 1950.5(b) to recover double damages for your failure to pay her alleged pain and suffering damages from the security deposit. Moreover, the tenant would have to prove that pain and suffering, which, as I have already explained, is nearly impossible to accomplish in small claims court. The tenant would have to sue in Superior Court, and would have no right to recover attorney's fees -- which would make the cost of litigation far greater than any possible recovery.

Consequently, I think that this is a dead end for the tenant, because she will be unable to prove you or the property manager negligent in the maintenance of the rental unit.

However, if you are looking for an unequivocal "yes" or "no" answer concerning the tenant's right to recover damages for pain and suffering, then that is a question that neither I nor anyone else can answer. It's a question of fact for a judge or jury. The tenant can demand damages, but getting a court judgment for those damages is a very difficult proposition, as previously explained. My opinion is that the tenant will lose this claim. But, I can't promise you this, because, again, it's a judgment call, and I'm not the judge.

Also our property manager will not give us the keys unless we pay him 252. I'm not sure for what and he won't let anyone on the property.

A: This is an entirely different and new question from your original -- rather than a follow-up for clarification purposes. If you would like to discuss this new issue, then pursuant to website policy, please open a new Q&A session for your new question, so that the contributor who answers may be appropriately compensated for his or her additional efforts in your behalf.

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Expert:  socrateaser replied 10 months ago.

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer -- otherwise the website retains your entire payment, and I receive nothing for my efforts in your behalf.
Thanks again for using Justanswer!

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