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Landlord breaches Lease before tenant takes possession

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Landlord breaches Lease before tenant takes possession

Old 06-01-2019, 02:08 PM
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Default Landlord breaches Lease before tenant takes possession

My daughter & her friend signed a lease to rent a house about 2 months ago.
The property was owner occupied, and the move in day was established as June 1. Prior to move in the property was to be professionally cleaned, paint touched up where needed, & needed repairs made, before they took possession.

They go to move in today & the property is filthy, the owner has yet to remove all of their belongings or make the needed repairs. My daughter has told them from day 1, that she is on a tight timeline as she starts her surgical residency late June, and must be settled in well in advance of day 1 and her starting 70 hour work weeks.

Since the landlord has breached the lease, they had to look for another property & have found one. Tomorrow they are meeting with the landlord to make their intent to exit the lease due to her breaching the lease agreement. They have a letter outlining the breaches supporting their decision to exit the lease. The plan is to sign a lease with the property they found today.

I have told her it may take some time to get her deposits back, but she should be successful even if she has to sue her to have her money returned.

What does the THT brain trust think?
Old 06-01-2019, 02:15 PM
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Lots of photo evidence for Judge Judy.
Old 06-01-2019, 02:16 PM
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If they had pictures, it should be a snap. If it goes to court, I'd advise a lawyer and include attorney's fees in the suit.
Old 06-01-2019, 02:25 PM
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Prolly a scam to start with...said "landlord" is probably not the landlord, and has disappeared with the money
Old 06-01-2019, 02:26 PM
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It really depends on the lease language and state law. I feel certain that there is a remedy window during which the landlord can make good and q procedure through which the lease can be cancelled.
Old 06-01-2019, 02:31 PM
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Definitely not a scam, we have know the landlord for several years. Alabama law appears pretty clear:

2009 Alabama Code
Title 35 — PROPERTY.
Chapter 9A — UNIFORM RESIDENTIAL LANDLORD AND TENANT ACT.
Section 35-9A-402 Failure to deliver possession.

Section 35-9A-402

Failure to deliver possession.

(a) If the landlord fails to deliver possession of the dwelling unit to the tenant as provided in Section 35-9A-203, rent abates until possession is delivered and the tenant may:

(1) terminate the rental agreement upon written notice to the landlord and within five days thereafter the landlord shall return all prepaid rent and security; or

(2) demand performance of the rental agreement by the landlord and, if the tenant elects, bring an action for possession of the dwelling unit from the person wrongfully in possession and recover the actual damages sustained by the tenant.

(b) If a person's failure to deliver possession is willful and not in good faith, an aggrieved party may recover from that person an amount equal to not more than three months' periodic rent or the actual damages sustained, whichever is greater, and reasonable attorney's fees.

(Act 2006-316, p. 668, §1.)
Old 06-01-2019, 02:36 PM
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That section deals with possession, which they clearly took. The other provisions don't deal with possession; rather, other terms. You better keep looking or get a lawyer's opinion.
Old 06-01-2019, 02:39 PM
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How much stuff and how dirty? Repairs excluded.

I’ve delivered rentals that still need a little work.

I’ve also had bank appraisers who wouldn’t sign off on the mortgage on a new construction house because I hadn’t installed the burner grates on the stove and still had a job box in the garage. He was a complete dick though.
Old 06-01-2019, 02:39 PM
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They haven’t taken possession, today was the day & house was not ready. Why do you think they took possession?
Old 06-01-2019, 02:47 PM
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Pictures pictures and more pictures.

If the landlord jumps (like today) give them the benefit of the doubt. If not, and there is another option, walk. But be prepared to fight for money paid so far in small claims court.
Old 06-01-2019, 03:06 PM
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Originally Posted by Slamdancer View Post
They haven’t taken possession, today was the day & house was not ready. Why do you think they took possession?
Legal definition of taking possession. What is it in your state? In some, getting the keys and entering the house with the intent to move in is enough to 'take possession."

Time stamped pictures.

Can't speak to repairs, but 'clean' is somewhat relative. The general term is "broom-clean" as the definition. It doesn't take into account things like scrubbing toilets and showers/tubs. Professionally cleaned is nice, but doesn't always happen.
Old 06-01-2019, 03:17 PM
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Originally Posted by Slamdancer View Post
Definitely not a scam, we have know the landlord for several years. Alabama law appears pretty clear:

2009 Alabama Code
Title 35 — PROPERTY.
Chapter 9A — UNIFORM RESIDENTIAL LANDLORD AND TENANT ACT.
Section 35-9A-402 Failure to deliver possession.

Section 35-9A-402

Failure to deliver possession.

(a) If the landlord fails to deliver possession of the dwelling unit to the tenant as provided in Section 35-9A-203, rent abates until possession is delivered and the tenant may:

(1) terminate the rental agreement upon written notice to the landlord and within five days thereafter the landlord shall return all prepaid rent and security; or

(2) demand performance of the rental agreement by the landlord and, if the tenant elects, bring an action for possession of the dwelling unit from the person wrongfully in possession and recover the actual damages sustained by the tenant.

(b) If a person's failure to deliver possession is willful and not in good faith, an aggrieved party may recover from that person an amount equal to not more than three months' periodic rent or the actual damages sustained, whichever is greater, and reasonable attorney's fees.

(Act 2006-316, p. 668, §1.)
If you are so smart why are you posting here?
Old 06-01-2019, 03:24 PM
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Originally Posted by TorFed View Post
Legal definition of taking possession. What is it in your state? In some, getting the keys and entering the house with the intent to move in is enough to 'take possession."

Time stamped pictures.

Can't speak to repairs, but 'clean' is somewhat relative. The general term is "broom-clean" as the definition. It doesn't take into account things like scrubbing toilets and showers/tubs. Professionally cleaned is nice, but doesn't always happen.
This.
Old 06-01-2019, 03:38 PM
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How does the lease address the requirement for repairs and/or cleaning? If the language is clear that the lease is conditioned upon those items, you may bE on solid ground. If the words aren't there, good luck. I hope kt works out well for them.
Old 06-01-2019, 03:46 PM
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Looking for some input, not to show how smart anyone is.

Points of contention:


d. keep all common areas of the Property in a clean and safe
h. thoroughly clean the property in its entirety prior to the commencement date
i. patch and paint all visible holes on the interior walls prior to the commencement date
Old 06-01-2019, 03:49 PM
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Originally Posted by Slamdancer View Post
My daughter & her friend signed a lease to rent a house about 2 months ago.
The property was owner occupied, and the move in day was established as June 1. Prior to move in the property was to be professionally cleaned, paint touched up where needed, & needed repairs made, before they took possession.

They go to move in today & the property is filthy, the owner has yet to remove all of their belongings or make the needed repairs. My daughter has told them from day 1, that she is on a tight timeline as she starts her surgical residency late June, and must be settled in well in advance of day 1 and her starting 70 hour work weeks.

Since the landlord has breached the lease, they had to look for another property & have found one. Tomorrow they are meeting with the landlord to make their intent to exit the lease due to her breaching the lease agreement. They have a letter outlining the breaches supporting their decision to exit the lease. The plan is to sign a lease with the property they found today.

I have told her it may take some time to get her deposits back, but she should be successful even if she has to sue her to have her money returned.

What does the THT brain trust think?
Don't forget this part in bold above. You could argue that the apartment was still occupied if belongings were still there.
Old 06-01-2019, 03:56 PM
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They were to take possession today.

owner failing to vacate is part of the breaching
Old 06-01-2019, 04:04 PM
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Originally Posted by Slamdancer View Post
Since the landlord has breached the lease ...
I tend to agree, but I'd like to read Section 35-9A-203 to see if it addresses what constitutes a breach by the landlord, and if your facts fit within those provisions. Let's take a look.
Old 06-01-2019, 04:09 PM
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h. and I. should be good for you because the work was to be done prior to commencement I think you're on good ground. Landlord was in breach. Be sure to serve notice in accordance with state law.

Hope it works out OK.
Old 06-01-2019, 04:52 PM
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What does the lease say?? Most will have verbiage to cover what you've described. I hate to say it but your daughter likely made a bad decision with expectations beyond what was going to happen. Owner occupieds often have no clue about property management and what it takes to make a place ready. Since they're there, what does the landlord say? Is he/she willing to make a deal to get this cleaned up... the deal that is? Real estate, contrary to popular belief, is very hard work. Most folks aren't willing to do what needs to be done to make things right. State law is always there but mind meeting is way faster.

Oh, and if an agreement is reached it MUST be in writing. Verbal wind has a tendency to wax n' wane.

Last edited by GulfC; 06-01-2019 at 05:20 PM.

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