Landlord States Holdover & Abandonment...Help Needed!

[sltungate]

I am writing this for my daughter who is having "legal" issues with her landlord. Her landlord is an attorney.

I will try to summarize her situation.

My daughter rented a room from her landlord, who also occupies the house, on October 15th, 2010. She signed a standard rental agreement. On April 22, 2011, she found another rental and gave her 30 days notice in writing. She spoke to her landlord and offered to pay for the additional week's rent. Verbally, he told her that was not a problem. So, she unfortunately, assumed she had until 5/22 to vacate the premises. At no time did her landlord, either verbally or in writing, tell her that she must vacate the premises on May 15, 2011. However, as she was moving her belongings out on May 15th, the new tenant, who was to occupy her room, came to the house with her belongings. She told my daughter that she was assured that she could move into my the room on May 15th. As I was visiting and helping her move, we removed all of her belongings from her room, throughly cleaned the space and the new tenant moved in that day. My daughter had a few belongings in the living room which were moved out by May 21, 2011. On May 21, 2011, her landlord sent her a Notice of Belief of Abandonment. He stated that she must reply with her intention that she did not abandon her property and a new address. She sent him a reply that day.

However, according to California Civil Code Section 1951.3:

"(b) The lessor may give a notice of belief of abandonment to the
lessee pursuant to this section only where the rent on the property
has been due and unpaid for at least 14 consecutive days and the
lessor reasonably believes that the lessee has abandoned the
property. The date of termination of the lease shall be specified in
the lessor's notice and shall be not less than 15 days after the
notice is served personally or, if mailed, not less than 18 days
after the notice is deposited in the mail."

Following this email communication, the landlord sent my daughter a "bill" for a holdover fee of $850 and other misc. charges (ie. key, cleaning, etc.). He has deducted her security deposit of $500 and states that she owes him $475.

This holdover fee is written in the rental agreement as follows:

"15.6 Holdover. If the Lodger holds-over in the Premises after the expiration or termination of this Agreement without the consent of the Landlord, the Lodger shall pay as hold-over rental a monthly rental rate of $850.00 unless otherwise agreed by the parties in writing; provided, however, that nothing in the foregoing provisions of this Section 15.6 shall be construed to limit or preclude any other rights or remedies available to the Landlord at law or in equity by reason of such holding-over by the Lodger, including, without limitation, the recovery by the Landlord against the Lodger of any sums or damages to which, in addition to the damages specified above, the Landlord may lawfully be entitled. A month-to-month tenancy shall be created by the payment of this hold-over rental, subject to the same terms and conditions of this Agreement, and shall be terminable on thirty (30) days
notice by either party, or on longer notice if required by law."

Does my daughter need to retain an attorney? Any advice would be appreciated.

 

[army judge]

Do you believe you can hire an attorney for less than $800?

If it were my decision, I'd pay the tribute being demanded.

She won't win this one, unless she expends significantly more than the amount she's being ripped off.

Some people might pay nothing, thereby forcing the landlord's hand and calling his bluff. He has a weak case.

If this went to small claims, the outcome in his favor isn't a sure thing.

Is it worth fighting about?

Not to me.

It might be to you.

If she refuses to pay, he might do nothing.

Or, he might take her to court.

Is this worth the fight?

To me, no.

To you guys, you need to decide.

 

[mightymoose]

On April 22, 2011, she found another rental and gave her 30 days notice in writing.... So, she unfortunately, assumed she had until 5/22 to vacate the premises.

She was correct. She had 30 days from the date notice was given. She does not have to move out at the end of the usual rent cycle. If done correctly she would have paid the next month's rent in full and then would have been refunded a prorated amounted depending upon which day she actually moved out.

At no time did her landlord, either verbally or in writing, tell her that she must vacate the premises on May 15, 2011.

She did not have to. In fact, she could have changed her mind about moving and stayed well beyond that date.

However, as she was moving her belongings out on May 15th, the new tenant, who was to occupy her room, came to the house with her belongings. She told my daughter that she was assured that she could move into my the room on May 15th.

The new tenant was misinformed. Until your daughter is out and has handed over her keys, or been evicted, it is her room only.

However, according to California Civil Code Section 1951.3:....

Yes, you are correct, and should have included this with the reply.

Following this email communication, the landlord sent my daughter a "bill" for a holdover fee of $850 and other misc. charges (ie. key, cleaning, etc.). He has deducted her security deposit of $500 and states that she owes him $475.

This should not be done by email, but save whatever you have.
The landlord is wrong.
The landlord allowed a new tenant to move in before your daughter was prepared to move out. This argument alone, unless there were significant damages, will likely result in the return of the deposit. Once that new tenant took possession of the room your daughter was off the hook. Hopefully you took some photos after you cleaned it up.
It sounds to me like you have a reasonable argument to make in small claims. The landlord will have to prove the damages, and probably can't. Sounds like a shmuck.

This holdover fee is written in the rental agreement as follows:...

The holdover fee does not apply. Your daughter was out before the end of her 30 days notice.

Does my daughter need to retain an attorney?

Attorney's are not allowed in small claims, unless the attorney is a party to the action. Brush up on landlord/tenant law, make sure you can show when notice was given, the date she moved out, the date the new tenant moved in, and the condition of the apartment when you left it.
Also, if the landlord wants to claim damages and keep the deposit the lanlord must provide an itemized list of those damages to show where the money went. If the landlord does not provide the itemized list, and does not return your deposit within 21 days (I think it is 21), then you can sue for the deposit and be awarded up to 3 times the amount of the deposit.