Out-of-state Landlord Can Be Sued for Deposit

Out-of-state Landlord Can Be Sued for Deposit

19-Oct-1997 Sunday
(Page H-6 )

Robert Griswold | Steven R. Kellman | Ted Smith
This column on issues confronting renters and landlords is written by Certified Property Manager Robert Griswold, host of KSDO Radio's "Real Estate Today!" (Saturdays, 2-3 p.m., AM 1130) and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

Q: My husband and I rented a home for 12 months in El Cajon. We moved out approximately one year ago and have never received an accounting or refund of our $450 security deposit.

The owners live in Nebraska and do not respond to our letters. Can we take them to small claims court here in San Diego? If so, do we sue them for $450 or can we seek a higher amount since we believe they violated the law by not providing an accounting or the return of our deposit within 21 days?

A: Griswold: Yes, you can file a claim in the local small claims court in El Cajon even though your landlord lives in Nebraska. Since your rental agreement was for a rental home in El Cajon, the local small claims court is the proper jurisdiction. Your main problem will be serving your landlord with the small claims court documents. One way to serve them is to have the small claims office serve the complaint via certified mail with a signed return receipt sent back to the court to prove the documents were served. Of course, the landlord may not be willing to sign for the delivery of a certified letter from you.

Another method of service to consider is to locate and hire a licensed process server in the local area where your landlord lives in Nebraska. You can then mail the original documents to them so that they can personally serve the papers and send you back a notice of service for filing with the court.

Kellman: The law requires an accounting and refund of your security deposit, if there is one due you, within 21 days from moving out of the home. The bad faith refusal to comply with the deposit law carries a $600 maximum penalty paid by the landlord to the tenant in addition to the deposit.

A landlord who lives in another state is still responsible for compliance with this law. A case may be brought in small claims court against an owner of rental property living out of state.

In your case, you have an excellent chance of being awarded the $600 penalty for the landlord's refusal to comply with the law or respond to your letters.

Although a year has passed, you should still have time to file your case in small claims court. The law allows you to file a breach of contract action within two years of the breach of an oral contract, and within four years of the breach of a written contract.

Q: There is a serious health and safety problem with the concrete decking by the pool and entrance to our unit. The concrete has settled and water from rain and the pool collects. There is no way to get to our unit without going through it.

We notified the owner in writing twice and only got a response to the first letter indicating that they'll get to it some day.

Recently, a guest of mine slipped and fell on her back on the wet concrete. Isn't the owner obligated to correct this hazard? Do we face any liability since we know about the problem and the accident at the entrance to our unit?

A: Griswold: Yes, the owner is obligated to correct any known hazards such as that posed by water on the concrete deck in front of your unit. Based on your two letters (with a response back on the first one), the owner has legal notice of the problem.

Since your guest fell, I would send another letter advising of the continued danger and the recent fall. Be sure to include a photograph of the area when the water is present in one last attempt to alert the owner to this serious problem.

You could choose to make the repairs yourself, although this is really the landlord's duty. Be sure to place a warning sign, cones or other adequate warning or barrier until the repair is complete.

Assuming you do not want to make the repair, your next step should be to contact your local code enforcement or health department.

In the city of San Diego, contact the Neighborhood Code Compliance Department. They will come out to the property and make a report and require the owner to correct the hazard and any other code violations noted.

And, yes, you are liable if any subsequent injury occurs, unless you provide an adequate warning or a barrier. If you've done this, you have a defense and the liability will most likely fall entirely on the owner.

Q: Several weeks ago my daughter applied to rent an apartment. She completed the rental application and paid a nonrefundable $25 fee for the credit report. She has checked with the on-site manager several times and was told the application was forwarded to the owner.

Meanwhile, no one has called her references -- place of employment and her current residence. The rental ad is still running and she has determined that the manager is still handing out applications for the same unit.

Can the manager or owner just keep taking applications without doing anything? Does she have recourse to get her money back?

A: Kellman: There is a new law regarding rental application screening procedures and fees. This law forbids charging an application screening fee unless there is a unit available or the tenant is notified that one will be available in short order. The charges must be justified and currently cannot exceed $30. The tenant applicant has the right to receive an itemized receipt showing the breakdown of the use of that application fee.

Your daughter can demand such a receipt to determine if the funds were actually spent on any credit or application screening. She is also now entitled to a copy of any credit report generated in that application processing.

If the law was violated by that manager, then she should demand the return of her money. Further, she may also have a valid claim for any damages she suffered waiting for the response that never came.

If you're a tenant or landlord, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 191, San Diego, CA 92112. Or you may e-mail them at rgriswold@retodayradio.com

Back to 1997 Rental Roundtable Index

Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws. As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply. Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

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Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
Email: rgriswold.ret@retodayradio.com