Landlord Has Stolen my Money?

I have been living in Arizona taking care of my mother who has been very ill.

I was planning to return to California January 1st.

I went apartment hunting, and found a unit I loved.

I did not sign a lease. I did not sign any contract.

I simply asked them to hold it until January 1st. They agreed, if I would agree to pay First, Last, and double security Deposit.

They ran my credit, got me approved, and 3 days later I gave them a cashiers check for $9,500.

4 days after that, I received notice that my mother's condition had significantly worsened. I cancelled my plans to move to California, and I notified the Apartment company.

They refused to give me any of my money back. They said the most the would do is HOLD the nearly $10,000 for when I do move to California, and live in their building.

I want to reiterate: There is no written lease agreement, no contract, and absolutely nothing on paper whatsoever. More importantly, I was not to move in to the unit for another three months, and notified them of the change of plans in only 4 days.

What should I do?

You can sue them for the amount in small claims court.

It does not sound as if the deal was finally agreed if no lease and terms existed.

You specifically asked them to hold a unit for you until January and paid fees to do just that. The management company is doing as you requested, holding that unit open for you. If you wish to back out now, you might be able to get a refund if they can re-rent the unit and if the receipt you got says first, last, and security (instead of holding fee). If it says holding fee, they don't need to return it since they are holding the unit. If it says the other, you should send a certified letter, rrr, to them stating that you no longer wish the unit because of a family illness and they should rent it immediately and reurn your money. Keep a copy for yourself and expect a reply within 21 days. If they don't refund within 21 days, file against them in civil court (small claims limit in CA is $7500).

Originally Posted by Unregistered

You specifically asked them to hold a unit for you until January and paid fees to do just that. The management company is doing as you requested, holding that unit open for you. If you wish to back out now, you might be able to get a refund

Might? Are you saying "might" based on knowledge of California Tenant Law? Or are you guessing. I didn't come here to get opinions. There are laws regarding situations like this. Im getting "MIGHT" from them as well. "We MIGHT get you some of your money back IF we can rent the unit". The California Tenant law, as far as I understand there is no "MIGHT". They are breaking the law to hold even a penny of my money. There is no contingency based on whether they can rent the unit. I am not obligated to wait for them to rent it. Where are you getting your information?

if they can re-rent the unit and if the receipt you got says first, last, and security (instead of holding fee).

The receipt says:
Monthly Rent: $3150
Ref Deposit: $3000
Cleaning Prep Fee: $200
Last Month: $3150
Total Charge: $9500
Total Received: $9500
Initial: Her initials. No signature on this form from me at all.

If it says holding fee, they don't need to return it since they are holding the unit.

Where are you getting your information? I have spoken to two attorneys and three rental companies and all of them unequivocally state that rental agreements need to be in writing, and they have no grounds to hold any monies if I choose to back out. Especially since I would not have taken the unit until January 1st - three months from that point.

If it says the other, you should send a certified letter, rrr, to them stating that you no longer wish the unit because of a family illness and they should rent it immediately and reurn your money. Keep a copy for yourself and expect a reply within 21 days. If they don't refund within 21 days, file against them in civil court (small claims limit in CA is $7500).

Why do I have to give them 21 days?

Also ......

You specifically asked them to hold a unit for you until January and paid fees to do just that. The management company is doing as you requested, holding that unit open for you.

You already know the unit was only off the market for only four days, and I was not going to move in for another 10 weeks.

So what exactly is your point? Four days off the market with another three months to rent it, gives them the right to lay claim to nearly $10,000 of my money, if they can't rent the unit?

Is that what you're saying?

The "might" had to do with how your receipt was written. A holding fee is non-refundable. A deposit or pre-paid rent is refundable. Since I had no way of telling at the time of my post how your receipt was written, I said "might". Had the receipt said holding fee, you could not get it refunded. The holding fee's purpose is to hold the unit open until you sign a lease and move into it. By accepting this money, and by you paying a holding fee, you enter into an unwritten contract to hold that unit open for you. Since they upheld that part of the agreement, they would not have to refund this to you. However, since your receipt says rent and deposit, it is not a holding fee and is refundable. (You'll note I further said that you could get a refund if the receipt said first, last, & deposit. I thought I had explained this clearly, but perhaps I didn't.)

You have to give them 21 days because your state law in CA gives a LL 21 days to account for and return a deposit to you. He has your deposit. Send them notice now that you no longer want them to hold the unit for you and they should re-rent it and return your money.

The point of their ability to re-rent applied to it being a holding fee. If the were holding the unit for you with only a holding fee, and they had already turned down the other applicants to hold it for you, they have lost the opportunity to rent to those people. If you had paid a holding fee and now wanted to back out, and they were unable to re-rent the unit during the period of time that they were to hold it for you, they have a legal right to keep that holding fee. They could not re-rent it to the other applicants since they had held it for you. It would have been your request to hold it that lost them the chance to re-rent it. It only takes a couple of days to lose other applicants. People don;t want to wait to rent and tend to find other places quickly. Those other applicants may have already rented other places. Thus they would have to start all over with advertising, showings, accepting applications, and screenings before they could find another tenant.

Perhaps this post better explains my intial response?

Originally Posted by Unregistered

The "might" had to do with how your receipt was written. A holding fee is non-refundable. A deposit or pre-paid rent is refundable.

Actually your information is incorrect. In the state of California, in the absence of any and all contracts or lease agreements, both are not only refundABLE but by law need to be refunded without hesitation. Disclosure dominates California Tenant law and there was none.

The holding fee's purpose is to hold the unit open until you sign a lease and move into it. By accepting this money, and by you paying a holding fee, you enter into an unwritten contract to hold that unit open for you.

There is no such thing as an "unwritten contract" in California when it comes to Landlord-Tenant law. They are not binding nor are they enforceable, and given the fact that the unit was only off the market for 4 days, nearly 70 days prior to move-in, there would be no grounds under which a sum of nearly $9,500 could be held. None.

Since they upheld that part of the agreement, they would not have to refund this to you.

No. They didn't. As has been stated ad nauseum - the unit was only off the market for four days. They didn't "uphold" the agreement. The unit would have been held from Oct 14 to January 1st. Oct 18th plans changed. They upheld 4/70ths of the agreement.

You have to give them 21 days because your state law in CA gives a LL 21 days to account for and return a deposit to you.

Again, misinformation. You are leaving out tons of important facts. This requirement is at the END of a lease upon MOVE OUT. It does not apply to this situation where the tenant never moved in, and is still 3 months away from even occupying the unit.

In the end, as per the instruction of my real estate attorney and several rental agents who do this every day for a living, I sent a letter demanding refund in full within 48 hours or I would take the issue to the Department of Real Estate and the DA's office and file complaints regarding their theft of my money. A check was issued within 48 hours by the company and I got my money back.

I RESPECTFULLY disagree on several counts for these reasons.

First, holding fees are non-refundable. There is a difference between a deposit and a holding fee. I agree that the deposit in absence of an agreement would be refundable. So would pre-paid rent. Paying those fees suggests that you will be renting the unit and will enter into an agreement (written or otherwise) to do so. It implied that you will be taking possession of the unit.

A holding fee is non-refundable. The implied agreement for that is not necessarily to move into the unit (you didn't sign an agreement to do that). The implied agreement is that they would hold the unit for you until a certain date and not rent it to anyone else until after that date. They would only have to hold the unit for that period of time to have fulfilled their part of the agreement. You could conceivably ask to have a unit held for you to decide whether you wish to rent it or not (although it would make it an expensive decision period). Your plans may have changed, but that doesn't change the contract to hold the unit for you. Still, since your reciept does not say holding fee, this does not apply to you. Your fees are refundable.

Next, there ARE implied agreements under CA law. All rental agreements do not have to be in writing. Only sales agreements. Otherwise, everyone in CA would have to sign a rental contract and no one could rent an apartment without one. Yet we both know many people in CA rent units without written agreements. A written agreement is not necessary. It is a very good idea, but it is not required to imply a contract. If no contract is written or it is a verbal contract, all states impose the laws of a month to month agreement on both parties. Each party must adhere to those laws. If unwritten contracts under CA LL-Tenant law were not recognized, a LL could just have a tenant arrested for trespassing and remove him whenever he saw fit. No state law allows that. Instead, the LL must follow the laws for a month to month agreement, giving proper notices, and evict under that section.

Also, per Ca Civil Code 1950.5 (g) "(1) No later than 21 calendar days after the tenant has vacated the premises, but not earlier than the time that either the landlord or the tenant provides a notice to terminate the tenancy
under Section 1946 or 1946.1, Section 1161 of the Code of Civil
Procedure, or not earlier than 60 calendar days prior to the
expiration of a fixed-term lease, the landlord shall furnish the
tenant, by personal delivery or by first-class mail, postage prepaid,
a copy of an itemized statement indicating the basis for, and the
amount of, any security received and the disposition of the security
and shall return any remaining portion of the security to the tenant."
This allows him 21 days from the time you provided notice of your intent to terminate any implied tenancy. (The giving of a deposit implied a tenancy per 1950.5(b) which states that security is "any payment, fee,
deposit or charge, including, but not limited to, any payment, fee,
deposit, or charge, except as provided in Section 1950.6, that is
imposed at the beginning of the tenancy to be used to reimburse the
landlord for costs associated with processing a new tenant or that is
imposed as an advance payment of rent, used or to be used for any
purpose, including, but not limited to, any of the following:"...) He wrote you a receipt for security deposit implying that you would enter into a tenancy with him., not a holding fee to hold a unit regardless of a future tenancy.

While you state the unit was off the market for only four days, that is not the issue. The unit is still unrented. You implied that you would rent it. How long until it is re-rented is the issue.

This post was respectfully submitted for consideration. Should you wish to disagree, that is your perogative. If all people agreed on the interpretations of the law, there would be no need for courts, would there?