Friday, June 26, 2009

Utah Rental Law -- Mitigating Damages and Written Terminations

I was in Small Claims Court a couple of nights ago, because of a disputed cleaning bill from an old landlord. I have a few questions for the real lawyers out there. I'm going to provide the basic arguments of my case below and I would like to know if I have a case for an appeal:


I terminated my rental agreement by phone on 2/13/2009. The landlord, who travels a great deal, said he couldn't take the time out of his busy schedule to make arrangements to get the rental re-rented and required that I list and show the home until I either rented it or he found the time to take responsibility for showing and renting the property. I ended up showing the home until March 20th after which point he finally returned to the area, cleaned the property and rented it within days.

The landlord kept a 1,400 security deposit which he accrued to March's rent. When he cleaned and made repairs, he charged over 1500 dollars for his time, water bills that accrued after I vacated, and for supplies. The majority of the bill was for his and his wife's time.


The Plaintiff Failed to Provide a Written Itemization within 30 days

Under Utah Code Annotated § 57-17-3 requires that the landlord provide “a written itemization of any deductions from the deposit, and reasons therefore, shall be delivered or mailed to the renter within 30 days after termination of the tenancy or within 15 days after receipt of the renter's new mailing address, whichever is later.” The contract was terminated on February 13th when we notified the landlord that we were going to terminate the lease. As far as the new address requirement is concerned, Landlord received the address long before the date we terminated the contract. Weeks prior to this he asked for the address claiming he’d like to drive by the property whereas he “claimed” he might be interested in purchasing our home. Notwithstanding, the landlord is an experienced landlord (with 2 rental properties on the Wasatch Front and one 2 blocks from my home in St. George) who knows, or should know that property information is public record and easily attainable from any web browser. Landlord knew that we would be moving back to our home in Saint George and had access to the address at any time.

Failure to Mitigate Damages of the Defendant’s Contract Breach

Under Utah State Law, upon premature termination of a rental agreement, the landlord is required to make reasonable efforts find a new renter for the dwelling. During the period from Feb. 20th to March 20th, the plaintiff did not make reasonable attempts to rent the unit. When we notified the Plaintiff on or near February 13th that we were going to terminate the contract, Landlord required us to advertise and show the home to prospective renters. He said he didn’t have time to, and would not, list and show the home. He gave us an implied ultimatum regarding our deposit (i.e. if we could get it rented quickly we might be able to get a portion of the deposit back)

During February and March, Landlord was unavailable to get a new contract executed on multiple occasions due to his travels – he was in Hawaii on one occasion and Las Vegas or Pennsylvania on another. Although he claimed he would be cooperative in showing the home, Landlord never made a good faith effort to do so until March 20th – after he had accrued the majority of the deposit to March’s rent leaving no deposit monies available to cover the plaintiff’s excessive cleaning and repair fees.

As a direct result of plaintiffs’ apathy towards their legal requirement to find a new tenant, defendants were denied recovery of the 1400 dollar security deposit. On account of the plaintiffs’ failure to take mitigating actions after the defendants breach, defendants liability to the plaintiff should be limited to the 1400 security deposit already paid to the plaintiff.

The Security Deposit

The opening line in paragraph 16 states that “the security deposit set forth shall secure the performance of the resident’s obligations”. This is a protection to the defendant limiting costs of vacating the residence to the required deposit. In the contract, the security deposit is broadly defined as being usable for rent, repairs, cleaning, other contractual fees, etc. The plaintiffs’ contract clearly sets forth that the deposit secures the defendant’s obligation, and the shortfall is the fault of the plaintiffs’ for not requiring a larger deposit. The contract makes no provision for additional excess costs to be collected beyond the security deposit, and Utah Code Annotated §57-17 does not provide for collection of excess costs beyond the security deposit. Any ambiguity in the contract is the fault of the plaintiffs who presented the contract to the defendants as a requirement to rent their property.

The Judgment

The judge decision was in favor of the plaintiff because the contract requires that written notification of contract termination must be given and notification was given verbally. The landlord admitted to receiving verbal notification on 2/13 over the telephone, and verbal notification that we moved out the 21st of February. All other arguments that I made were apparently considered moot.

If anyone would like to opine on this matter feel free. As a warning to anyone renting, never ever communicate with your landlord by phone, and negotiate a early termination contingency plan. The judge was on her way to ruling in my favor over the first argument, until the written termination provision was brought up.

I'm just curious


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