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updated: 2/5/2011 4:21 PM

Robert Griswold/Rental forum: Small claims court can get landlord to act

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By Robert Griswold

Q. My husband and I are Canadians working in the U.S. and do not fully understand your tenant-landlord laws. It all started in 2009 when we lived and worked in Honolulu, Hawaii, where we rented a condo from a landlord who lived in San Diego.

We signed a six-month lease and gave the landlord a security deposit of $2,200. When the six-month lease was up, we renewed for another six months at a lower rate of $2,000. However, we encountered work visa issues and chose to break our lease early, giving our landlord two months' notice that we would be vacating the unit and returning to Canada.

There were only a few months left on the lease and we even tried to help her find new tenants to move in but were unsuccessful. We paid the full month's rent but actually moved out on the 13th of December. Fortunately, the property was rented almost immediately, according to the landlord's real estate agent, who advised us that the new tenants moved in within a week or just before the Christmas holiday.

The rental agent also informed us that the landlord was not allowed to collect double rent so we should expect a refund of the prorated portion of our rent along with the $2,200 security deposit minus any reasonable deductions.

After returning to Canada, we tried to contact the landlord several times by phone and e-mail, but she did not respond. Within 60 days we were able to resolve our work visa situation and found employment in Los Angeles last month. We tried to contact her again but still with no response. Finally, we sent an e-mail saying we were going to sue her and she finally responded by saying that she did not owe us anything. We are unsure of what to do now.

We were told we could try to sue her in small claims court, but we are not sure how to proceed, as the property was in Honolulu, she lives in San Diego, and we live in Los Angeles. We also don't know how much we should be seeking in the lawsuit. Could you please give us some advice?

A. Your question is potentially complicated, but I will try to sort out the various scenarios. Before you even determine the amount to seek in a small claims action, the real challenge with your situation is determining the proper venue or location of the court for filing your small claims action against the landlord for your security deposit accounting and/or refund. The proper venue will typically be determined based on 1) as agreed between the parties and indicated in the lease or rental agreement; 2) the location of the rental property, or in this case, Honolulu, Hawaii; or 3) the business location of the defendant, which would be San Diego.

So pull out your copy of your lease and look for language that would indicate what laws will apply in case of a dispute or litigation. If that doesn't provide a definitive answer, then you should file an action in Honolulu. Of course, the reality is that filing in Honolulu is inconvenient for both you and the defendant, as both of you are now located in Southern California. So you may want to seriously consider filing the small claims lawsuit in San Diego, as that is where the owner lives and would be an appropriate venue. Clearly, when you lived in the rental property in Hawaii and if you were still there, it would have been appropriate to file any claims in Hawaii.

The landlord could argue that San Diego is not the proper venue and try to get the case dismissed, but then if you were to refile in Honolulu via mail they would have to appear in court there. That is an economically infeasible solution for both sides so hopefully the filing of the small claims action in San Diego would be enough to motivate the landlord to properly account for and/or return the unused portion of your security deposit.

By breaking your lease early, you are responsible for the balance of the lease subject to your landlord being required to mitigate or minimize your damages by re-renting the property as soon as possible. Your landlord did that, but she can charge you for the reasonable costs of finding a new tenant. So the reasonable cost of marketing the property for a replacement tenant, such as ads, a sign on the property and any commissions paid to the rental agent would be your responsibility. There is also the chance that the landlord had to offer concessions or rent discounts or received a lower rental rate than you were paying.

I can tell you that it can be difficult to find a replacement tenant in the middle of December without offering some form of concession. But your request for a response is completely justified. The landlord owes you a final accounting of your December rent and your security deposit.

You are correct that the landlord cannot collect rent from you and the new tenant, but she can deduct any of the re-renting expense or losses plus the usual deductions for any work required beyond normal wear and tear.

I suggest you send a demand letter asking for a full accounting with copies of receipts for the marketing and any security deposit deductions. If the reasonable charges total less than the unused portion of the December rent plus the $2,200 security deposit, then you are owed a refund. Of course, if the total is greater than that, you would owe the landlord some additional funds.

• Property manager Robert Griswold is author of "Property Management for Dummies." E-mail rgriswold.inman@retodayradio.com.

$PHOTOCREDIT_ON$ 2010, Inman News Features$PHOTOCREDIT_OFF$

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