Open Forum → Is my landlord trying to screw me again?

1. Returning the garage to pre-existing condition means take the shelves down. Understand that the issue resolves to what can be proved and she can't prove that you did not mount the shelves to existing holes.

2. No one cares what she said when you asked about going month to month. You had a lease which stated you could do this and that contract proxies her agreement to do so even without your asking. In fact, I have no idea WHY you asked when you have a contract that empowers you to do just that. Your asking her only served two purposes, one being that you are weak, the second being that you have no understanding of the contract you signed.

3. You don't happen to mention the amount of the damage deposit, although I admit not reading the entire thread.

4. The written notification is one experience I share. When I signed a contract that stated I had to provide written notice I just ignored the provision. Understand that simply stating that a 30 day written notice does not specify form or format. You might have placed a sticky note on the outside of your front door with writing upon to the effect of terminating your lease. In court, it becomes a he said/she said thing because you don't have a copy of the letter you gave her and she doesn't have a copy of the letter you didn't give her. Doesn't mean squat.

What does mean squat? Is your rent paid up to date? If so, she has little recourse with any judge in America.

Damages? She can write/type anything on the exit form that she likes; however, both of you have a obligation to uphold the contract. Did the contract require you to submit a form to get signed? If it did and you didn't, well then you kind of screwed yourself on that deal. If it didn't and you didn't, then she is kind of screwed on that deal. She can't require anything beyond what the contract provides her. Oh she can ask you for things, but your obligation is to the contract.

Advice: Don't take someones word over a contract you sign. In every case, a contract overrules personal feelings and words of wisdom.

Small claims court would.

Why? It goes against the contract. AFAIK you can't just talk your way out of a contract. Basically this guy asked if he could do something allowed by the lease and they said 'no'. Doesn't get them out of it.

Still needs to give 30 days notice though, that's in the lease too.

What you say matters in small claims, regardless of the contract.
The landlord told him to either move out or sign a 6 month lease over 30 days before the lease ended.

What you say matters much less than what's on paper, especially if one or more parties start lying and exaggerating.

This case would be pretty open and shut, he didn't give the 30 days notice. What the landlord said about signing a 6-month lease is irrelevant to that, it doesn't change the lease itself.

If it was myself and I didn't want to leave I would've insisted on going month to month. Like somebody else said his mistake might have been asking in the first place, should have just gone ahead and done it. Keep sending in the rent cheques every month according to the lease and they can do anything about it.

In my experience they're tricky, every apt I've been in they send a form every year about giving Option A: renewing the agreement for 12 months and Option B: giving notice to vacate the premises on a certain date. Buried in the print is that I can stay month-to-month and not do either option and that's what I do, don't even have to submit the form.

The lease cannot override the law and in small claims regardless of what the lease said if the judge feels the landlord did actually tell the tenate to either move out or sign a 6 month lease then the landlord will lose. The OP can prove the phone call with call logs and the judge will decide who is telling the truth of the conversation of the phone call.

Well, one minor point - not sure if anyone else has raised it because I didn't read ALL the prior posts down to the last word.

You SAY you wanted a "month-to-month" lease after the written lease term expired, but that's not what you REALLY communicated to the Landlord or, really, what you intended because YOU told the Landlord you "didn't want to move over the holidays" and, most likely, "would stay until February/March." In short, YOU wanted the option to stay until February/March, but you didn't really want the Landlord to have the option to kick you out before then.

Had you ACTUALLY entered into a month-to-month with the Landlord - and under the terms of the lease you could have done this without prior notification to the landlord - then the landlord COULD HAVE given you notice on October 31 to MOVE OUT on November 30. That risk would have defeated YOUR PURPOSE (i.e., not moving over the holidays). The proposed 6-month lease would have been as much for YOUR protection as it would have been the landlords.

Point 2: Had the roof leaked, no doubt you'd be clammoring for a discount too. I don't think most judges would let you have it both ways: (1) a discount on rent when the property is sub-par AND (2) a discount on rent when the landlord tries to keep the property up to snuff. The fact that you experienced some - IMO - minor and temporary inconvenience due to the construction doesn't cut any mustard.

That you have a "hyperactive" or "hypersensitive" pit bull isn't the landlord's problem, it's yours. What? You couldn't walk the dog ANY OTHER place (a park, for example)???

The work was performed during normal business hours and did not deprive you of use of the premises at any point. It just made it "less nice" to live there for several hours during a two week period.

Put simply, roofs need replacing from time-to-time; repairs need to be made. In fact, most leases will allow the landlord entry to make such repairs. If you OWNED the home rather than renting it, you'd have PAID for the roof AND you would have been equally "inconvenienced" . . . and your mortgage company still would expect full payment.

As for the shelves: take 'em down and putty OR leave 'em up. At this point, you're probably in for a confrontation over them no matter what you do.

My educated guess is that a judge will have no problem with taking them down and filling the holes with wood putty. Any landlord who argued "that's nor original condition" would get slapped down. Judges - especially those in small claims or real estate disputes - see this stuff all the time. They have a sense for what's fair and reasonable and what is not.

With regard to the pro-rated rent, as I read the contract and your "side of the facts" - then neither party served written notice on the other 30 days or more prior to October 31, 2009, that the "month-to-month" continuation clause would not be acceptable.

That is, prior to October 1, you didn't write the landlord saying you intended to vacate at the end of October; nor did the landlord write you and say "move out by the end of October, I don't want to go month-to-month."

The "month-to-month" clause in your lease is simply a default provision for what happens if NEITHER PARTY communicates it's post-lease intentions to the other 30 days or more prior to the end of the lease.

As no notice was given on or before October 1, 2009, then the tenancy continued (by the terms of the lease) month-to-month for at least one more month: i.e., November 2009.

Your Oct. 12 notice was not effective at preventing the "month-to-month" default clause from kicking in (because it was less than 30 days prior to the end of the written lease term). As such, you DO have a month-to-month lease . . . but only for ONE month (November 2009).

Technically, you COULD stay in the apartment until the end of November, but you'd be on the hook for ALL of November rent.

As I see it, based on the terms of the written lease and the facts as reported here, pro-rating the November rent is better than being on the hook for the whole amount.

It was roofing and stuccoing. Most of the OPs complaints seem to revolve around the stuccoing, which is an upgrade rather than maintenance. Stuccoing is not a minor inconvenience, especially when they are doing the sandblasting.

7am-9pm is not normal business hours.

NM law appears to say that no notice is required on a fixed term lease to prevent automatic renewal if the tenant is not occupying the property when the fixed term ends; even if there is an automatic renewal clause, the parties must agree to the renewal unless the tenant continues to occupy the property.
(I say "appears", because I am not a lawyer and cannot provide accurate legal advice for New Mexico.)
But, as I mentioned above, if the failure to provide notice impacts the landlord's ability to rent the unit, then the landlord can take appropriate damages out of the deposit. That would basically be the prorated 30 day notice period, but to collect those damages the landlord must make a good faith attempt to rent the property, must not have been attempting to rent the property before notice was provided, and the property must remain vacant for the period for which the damages are assessed.
If the landlord was advertising the property on or before October 1st, failed to advertise the property or otherwise pursue new tenants after notice was given, or succeeded in finding a new tenant, damages for short notice cannot be taken from the deposit.
Either way, it is damages, not rent charged.

I'd not pay the final months rent and tell them they already have it in the form of the security deposit.

And even if there was no damage they would be trying to screw you out of your security deposit for "cleaning" things like ceiling lights, carpets, dust in cupboards etc. They obviously kept the security deposit of the previous tennant and didn't even use it to fix the place up, and when they keep your security deposit to pay for "all the cleaning and repairs" they had to do, if you came back you would see that they did nothing of the sort.

Rent is paid through the end of this month. We are not going to stay 1 day longer than we have to...But yeah I get the general feeling that they are going to try and use OUR money to fix up this place and then call it "damages" when we get the remaining balance if any.

"Oh yeah, the house needed new light fixtures, and new paint", and whatever else they can 'purdy up' on our dime.

IMO, the landlord is entitled to the pro-rated rent, because you didn't provide your notice on time.

One thing with real-estate.... get everything in writing. If it's not on paper it doesn't exist.

Is there anything in the original contract that prevents you from making reasonable alterations (i.e. minor cosmetic changes like shelving, paint, nails in the wall)

As long as you putty and paint, you are leaving the home in it's original condition.

HTH,

I also think unless these new homeowners are made of money, they will never take you to court. As you know, just because you win a court case, doesn't mean you collect, however you're still left with the bills.

I think what WILL happen is they'll keep your deposit, say it's for all the cleaning and fixing they had to do, and not actually do any cleaning/fixing.

You probably wont get any money from them.

Maybe you should get out of the rental business altogether. You're way too sensitive to be engaged every day with tenants you have no respect for. Everything you have cited are infringements that require a notice to quit, setting forth the issues in need of correction, be given to the tenant, along with a reasonable opportunity to correct the violation by a date certain; presuming said violation is contrary to the written lease terms, and not just a figment of your imagination. You can't just make shit up, and you can't automatically evict someone for behavior you just plain don't like. There are laws and procedures to be observed along the way. Hopefully, some of your tenants will discover, and document, your over-zealous and arbitrary notion of "bothersomeness" in preparation of their defense of an unlawful retaliatory eviction, should the occasion present. I get the feeling that your definition of bothersome is directly proportional to the tenants willingness to stand up for their rights, and not be bullied by a landlord who willfully disregards the terms of the written lease agreement, or who considers themselves above the law.

While you give the impression, as all landlords do, that they can evict a tenant at their whim, such is NOT the case. In fact, removing a tenant who is determined to stay, even one who is in undisputed violation of the terms of their lease, can be very costly in both time and in money.

Very true, but in landlords defense, most have seen it all...and newer landlords will see it all in a matter of time...So you will have to excuse them for there attitude to put what is most important first, there property and the money it makes. You are in a business relationship with them, nothing more.

There are so many deadbeats out there that exploit the rental system...many go from one place to the next knowing the length of time it takes for the eviction process and just living for "free" with no regard for anything or anyone else.

My favorite excuse was always "Oh he (landlord) doesnt need the money, he owns this building...i will put the rent money towards something I want"

The original lease term expires Oct. 31, 2009. The tenant has an option to convert to a month to month rental at the end of the original lease term. No notice is required by either party to the lease if the tenant surrenders the premises in rentable condition by the end date of the lease term. The landlord has no control over the exercise of the tenant's option to stay other than to require reasonable notice (30 days?) if the tenant decides they wish to exercise said option.

The tenant advised the landlord, after several failed attempts to contact the landlord, they wished to convert the rental to a month to month basis from Nov 1, 2009 through Feb/Mar of 2010. The landlord demanded a new, six month lease. The landlord had no right to make that demand. The landlord could request, but not require, a new lease. Unless the landlord gave timely notice to the tenant he intended to RENT the premises to a new tenant effective Nov 1, 2009, there would be no reason for the tenant to give notice of intent to stay 30 days prior to the cessation of the lease term, except as a courtesy and/or to preserve their right to convert to a month to month rental, and the landlord had an obligation to provide sufficient notice (30 days?) to the tenant of the landlord's intent to rent the premises to a new tenant upon the expiration of the original term of the OP's lease. The end result is the same; i.e., the tenant had a right to convert the fixed term rental to a month to month, and the landlord had an obligation to allow it. Failing notice by the landlord, the tenant had the right to expect they could stay, month to month, until such time they gave the landlord a 30-day notice they were intending to vacate the premises 30 days hence. The tenant was/is under no obligation to sign a six-month lease, or to stay beyond the rental term ending Oct 31, 2009. As long as the tenant surrenders the premises on time, the landlord has no recourse. This circumstance does not confer upon the landlord any additional right to demand a new six-month lease, or provide a basis for the landlord's assertion of loss of rent for any period beyond the date of surrender of the premises by the tenant, in accordance with the terms of the original lease, on Oct 31, 2009. If the landlord failed to give notice, or refused to allow the tenant to exercise their right to convert to a month to month rental, the landlord has no right to any rent from the tenant for any period beyond the day of the timely surrender of the premises. Any such loss of rent can be deduced to flow from the landlord's lack of timely effort to find a new tenant, reach an equitable accommodation with the tenant, or take any other timely action to mitigate his circumstance. The tenant is not responsible for the landlord's lack of due diligence, or the landlord's failure to deal fairly with the tenant by giving sufficient notice of his intent to rent the premises to a new tenant in disregard of the landlord's obligation to allow the tenant to stay on a month to month basis.

The OP states their intent to remove the shelving which is their property, and their right; and to make repairs as necessary to return the premises to "as rented" condition, less allowance for normal wear and tear; to conduct a thorough cleaning (except for the carpet, which has been provided for by the non-refundable portion of the pet deposit); and to conduct a "walk-through" inspection and sign-off prior to vacating and surrendering the leasehold premises on or about Oct 31, 2009.

At the time of the exit inspection, the tenant should present a demand for written list of any discrepancies and/or deficiencies in condition of the premises noted by the landlord, and tenant's demand for a full refund of all deposits, less the non-refundable portion of the pet deposit, from the landlord within the permitted statutory period provided by law. The best way to avoid going to court is to meticulously document your claims, and affect a demeanor of resolute determination to defend your rights.

do this...
have your lawyer send a certified letter demanding a signed copy of the Property Inspection Report from them. 'they' have a signed copy also, correct? (hehe) play it against them.
also have your lawyer tell them that 'they' are only to contact him/her regarding anything to do with the apartment and you being a tenant.
take the shelves and all hardware down. its your property. as far as the nail holes from said shelves and hardware, its normal wear and tear.
clean the place up as best you can within reason. you shouldn't have to call ServPro or Service Master. just do a good job.
will you get your deposit back? pretty good chance with a lawyer involved. it worked for me when i had issues with my rental management company back in the day. did the lawyer cost a bunch? no, hardly anything at all. he sent out a couple of letters and spoke to them once on the phone. i got back my full deposit.
just take this as a learning experience.

That's okay, the court will get it back for him, plus penalties, if the landlord unreasonably withholds, or delays repayment, beyond the statutory limit. The OP has good documentation of the "move-in" condition, and presumably will have equally good documentation of the "move-out" condition. landlord's must justify any withholding with documentation.

Provided the tenant vacates the premises on time, the landlord is not entitled to any rent beyond the month ending Oct 31, 2009, the end date of the lease. The tenant is not "holding over", so no additional rent is due. Period.

That's fine for someone who is unemployed or does this stuff for a living. A normal person will end up losing money taking something like that to court. Think about it, how much is your time worth? What about the time you might take off work and not get paid for?

The OP can drag the judgment debtor into court to force a disclosure of all the judgment debtor's assets which might be used to satisfy the judgment amount. If the judgment debtor has any cash on his person at the hearing, such cash may be siezed as partial satisfaction of the debt. If other liquid assets in sufficient amount to discharge the debt cannot be identified or located, a lien may be placed encumbering title to any assets which are identified and/or located which could be sold to satisfy the debt. Liens are a matter of public record, and have a negative effect on credit rating. It might take a while, but the judgment will be paid.

Wrong. Without notice they are month-to-month after lease expiration and must provide 30 days notice. This is standard, without 30 days notice they are on the hook for November.

If they want to make a case that they left because of the insistence on signing a new lease they can try, but according to the lease they are on the hook for November.

I can't agree. $1345.00 is a sizeable amount, not a trifle. Small Claims Court might take half a day. Well worth the trouble, considering there are also principles involved. Of course, some folks are used to being bullied, bamboozled and fleeced, but most folks I know would fight. Over time, if enough people pushed back, there would be fewer of these asshole landlords to deal with.

Here here!! I'm all about it. We had to do it once before due to an unscrupulous landlord/owner and it appears we may have to do it again. But the problem is that most folks will just roll over and decide it's easier to just give in and let them keep the money. Me personally, I am not made of money, and was depending on this to fund our next move/damage deposit. And indeed principal has much to do with this as well.

Ross, I would like to personally thank you for your inspiration and helpful advice, you are a true asset to these boards.

Yeah people like the OP are the reason why we have such high insurance and medical costs.
SUE
SUE
SUE
Get a grip, as far as I am concerned the OP is in the wrong, he broke the contract agreement, and modified the structure without written permission first.

Like I said before, I just stop paying at the end and tell them they have my money already for the last month (the security deposit). I'm not a person who leaves a mess or anything, PLUS every singe place I've moved into has had a mess that I've had to clean up in order to make it habitable. So I don't feel bad at all.

Too many people make the mistake of "trusting" the other party in business transactions. Get everything in writing and never give them more money when they owe you money.

I disagree. I have never filed a lawsuit in my life, the last time I had to go to court it was because my landlord sued us....and LOST.

You cannot go around generalizing people when you know nothing about them. And it's not like we went around tearing up the house and expect the owner to cover the costs of fixing it. We will clean and fix our fair share, BUT we are not going to fund any upgrades or damage that we were not responsible for.

Too many people out there are like this, but truth be told we are excellent tenants. We paid our rent on time and in full, we kept the house in good condition. We don't party or smoke in the house. Aside from being pissed off about the construction zone that was our house for 2 weeks...which I would like to see you naysayers live through what we did and sit there and preach. If you have not lived through it then keep your 2 cents out...

We just don't want to get screwed which it seems to me that all too many landlords are accustom to doing--and getting away with.

Not according to the law in New Mexico. Remember, the lease has not expired yet.
It is a fixed term lease (12 months), which means that the landlord cannot require notice if the tenant does not hold over.
Only on a month-to-month lease can the landlord require 30 days notice. (And no, having a month-to-month renewal term in the future does not make it a month to month lease.)