My tenant and I have a binding lease agreement until December 1, 2015. My tenant notified me per phone call on friday 06/26/15 that he would be moving out tuesday, 07/06/15. He mentioned that he would still pay the full months of rent for july. He did not give me a 30-day written notice before hand. Now, today, 07/02/15 he called and said that he would only pay half the rent because he was moving out next week and he would clean the carpets and replace the blinds because he broke them. We let him know that he is still in a lease and that he would need to try to find another tenant and that we would also try to find one to fill the vacancy as soon as possible. We let him know that we would not be able to accept half the rent. What are my options?We are still in the possession of his security deposit. My question is, are we able to keep it? From my understanding we are but I wanted to be 100% sure. Also, if he does leave 07/06/15, can we take him to small claims court for the remaining balance of the lease? How do we pursue this? Today, he is already two days late on his rent for july. We did not think it was wise to accept half the rent payment because we wanted to protect ourselves. We weren't sure if accepting the half payment would affect our chances at small claims court because it would maybe be seen as agreeing to him surrendering the house.
You can do both, deduct from the security deposit and sue in small claims court for breach of lease due to the early termination. With respect to the security deposit, Civil Code section 1950.5 allows you to deduct from the deposit for unpaid past rent. By paying only half of the rent for July, there is unpaid rent due by the time the tenant moves out. You need to provide a written itemization of the deductions made from the security deposit within 21 days after the tenant moves out. You can deposit the half month's rent and still have the right to bring a small claims court lawsuit for breach of lease for unpaid back rent as well as future rent, along with any damages or excessive cleaning charges. As the landlord, you do have a legal duty to mitigate damages by finding a replacement tenant, so if you are able to find a new tenant, the amount you can claim in small claims court against the former tenant is reduced by whatever rent a new tenant pays you. For information on small claims court, see:
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended nor should be construed as legal advice for any particular case or client. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney. This posting is not intended to constitute an advertisement nor a solicitation. Due to the high volume of phone calls and e-mails, not all phone calls or e-mails can be returned.
Frank is right.
To protect yourself, start advertising the space for rent immediately. Consider putting the rental with a management company, if it is hard to find tenants in your market. These actions will show the judge you've done your best to "mitigate damages."
I recommend all residential landlords and tenants get the free California Tenants Guide from the Dept of Consumer Affairs. It's a wonderful guide to the landlord tenant relationship for both parties.
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