Being sued for keeping security deposit.

Being sued for keeping security deposit.

Phoenix, AZ · Member since 2017 · 10 posts · 2 votes

Hello all, apologies if this question has been asked before but after searching through the forums for a while I found nothing to match my particular situation. 

We have recently sold our rental home to the renters. The day of closing, my agent calls me and explains to me that the buyers were asking for me to forgive their rent for the month so they could afford to close that day with their available funds. My response was I was fine with it only if I am not going to be held liable for any more money out of the deal. 

Long story short, we received our final statement from the escrow company and found that they deducted around $1,100 dollars from our profits. After seeing this, we opted to keep this amount from the renter's security deposit and returned the rest. After informing them of the reason, they are now threatening to sue us. So my questions are:

1) Do they have a case? The only thing they have going for them is the agent telling them they wouldn't have to pay rent. But nothing was ever mentioned about the security deposit. 

2) I live out of state (in Arizona), I would have to miss a few work days, pay for a plane ticket, hotel room and rental car just to defend myself in court. How are these situations normally handled? 

This feels like a complete scam, the agent I feel was working with the buyers to screw us out of the 22 days they owed for rent. Has anybody had any experiences like this? How did you handle it? Is it worth the fight? Normally I just give in to situations like this but this time it feels different. Appreciate any comments and feedback. Thanks!

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Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
8y
You owe the security deposit to them, period. Doesn’t matter if you view it as the deposit going to the new owner’s or more appropriately, the deposit is being returned to the tenants because No damages were repaired out of that deposit. We don’t know where the $1100 deduct came from and whether it was legit or not, I suspect it was just a closing cost you as the seller were unaware of but legit. In any case, you don’t get to arbitrarily take it from the deposit, it is totally unrelated. Also, you got a copy of the closing statement prior to closing and had to sign it.
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  • Phoenix, AZ · Member since 2017 · 10 posts · 2 votes
    8y
    Originally posted by @Roger S.:

    I'm trying to figure out how you can forgive the rent without it coming from your profit.

    My thoughts exactly but when you’re new to selling and an agent calls you and assures you it can happen I fell for it. 

  • Investor · Winter Park, FL · Member since 2017 · 171 posts · 165 votes
    8y
    Originally posted by @Jacob Mendrin:

    Thanks guys for the responses, very insightful. 

    I'd like to clarify a few things. Just for everyone's benefit and learning. 

    1) The new owners of the home ARE the renters. While they were living in the property (under my ownership) they did not pay rent for 22 days.

    ...

    3) ...  I stated that I would only forgive 22 days of rent as long as it did not come out of my profit of the house sale.

    Where did you think the money was coming from?  Of course if you "forgive" rent it's coming out of your pocket.  This is self evident.  

    The tenant/buyer is not in "default" of rent - you forgave it.

    Further, you did not understand how mortgages work (why would the bank just forgive the partial month's interest?).

    Return the security deposit and chalk it up as a learning experience and going forward to actually understand how things work.  Don't forgive money owed to you that you don't actually intend to forgive. 

  • Investor · Boston, MA · Member since 2015 · 1k+ posts · 3k+ votes
    8y
    Originally posted by @Jacob Mendrin:
    Originally posted by @Doug McVinua:

    If a Realtor is deemed to have conducted themselves in a less than desirable way a Complaint can be filed with the Association and or the AZ Department of Real Estate. 

    The Real estate department would primarily take interest if the public was harmed via a law or rule being broken. From what I read I'm not sure this topic rises to that level.

    Realtors agree to a Code of Ethics, a much broader perspective of items. You can breach the Code of Ethics and not break a law. Artice 1 is about treating parties fairly and honestly, sort of a catch-all.

    What is the promise of "No Late fee"?

    Because I was under the assumption ...

    Hanlon's Razor is rearing its had again. This doesn't sound like malice on anyone's part, but more miscommunication/ misunderstanding. 

    You just paid $1,100 to learn that you shouldn't assume anything in a business transaction. No big deal, happens to everyone.

    Sure, filing a complainant with the RE commission feels good, but the proof of wrongdoing sounds thin at best. You'd probably get more traction voicing you feelings to the agent and their broker. Maybe they make you whole if you ask nicely and don't roll in on the war path. Maybe you paid some tuition to the school of hard knocks. 

  • Walnut Creek, CA · Member since 2015 · 3k+ posts · 2k+ votes
    8y
    Originally posted by @Mike Cumbie:

    So the $1100 was not their rent, it was you not paying the mortgage for June?

    Then you forgave the June rent from the tenant

    Then you tried to take the $1100 out of their security deposit for your mortgage payment? 

     Glad I'm not the only one confused by this....

  • Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
    8y

    @Jacob Mendrin Just to be clear on a couple of basic things, no criticism intended:

    Mtg payments are paid in Arrears, not in advance....a payment due on July 1st is for the principle and interest earned during June.  So, yeah that payment is due even if you close July1.

    If you Pay your mtg payment by the 15th of the month, there is no penalty.  When you Close on a sale on the 15th, the Pay Off, including June's princ/interest will Not be to the lender by the 15th, probably a week later.  This is probably the misunderstanding your agent had.

  • Debary, FL · Member since 2017 · 9 posts · 10 votes
    8y
    In Florida you have 30 days to send notice of security deposit claim and it must be done by certified mail to last known address. Even if they owed $10,000 you could not keep a dime if you don’t properly follow the claims process. If they take you to court they will win and you will have to pay their attorney fees. Your agent should have done a contract addendum stating how deposit would be handled. This is Florida but I would bet Cali is similar
  • Nathan GesnerBusiness Member
    Moderator
    Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
    8y

    I think you're being taken for a ride.

    You should have demanded the rent on June 1st (or 5th, or something).

    When they called on the 15th to say they couldn't afford the rent and to close, you should have walked away.

    When your agent contacted you to negotiate a forgiveness of debt, they should have advised you to put it in writing. They didn't, so your agent should be fired or help reimburse you for that loss. You were also charged a late fee by the mortgage company and that late fee should be paid by whomever promised you a closing by the 15th or whomever caused you to not meet that deadline.

    The tenants did not pay rent for June but they occupied the home as tenants with a written lease agreement. Unless there is a written agreement that over-rides the lease agreement, they owe rent. Yes, they could argue in court that you had a verbal agreement, but you could counter that the verbal agreement was to close no later than June 15th. I'm not the judge but I don't think they have a leg to stand on.

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  • Phoenix, AZ · Member since 2017 · 10 posts · 2 votes
    8y
    Originally posted by @Nathan Gesner:

    I think you're being taken for a ride.

    You should have demanded the rent on June 1st (or 5th, or something).

    When they called on the 15th to say they couldn't afford the rent and to close, you should have walked away.

    When your agent contacted you to negotiate a forgiveness of debt, they should have advised you to put it in writing. They didn't, so your agent should be fired or help reimburse you for that loss. You were also charged a late fee by the mortgage company and that late fee should be paid by whomever promised you a closing by the 15th or whomever caused you to not meet that deadline.

    The tenants did not pay rent for June but they occupied the home as tenants with a written lease agreement. Unless there is a written agreement that over-rides the lease agreement, they owe rent. Yes, they could argue in court that you had a verbal agreement, but you could counter that the verbal agreement was to close no later than June 15th. I'm not the judge but I don't think they have a leg to stand on.

    Thank you for your comments Nathan, they express exactly how I feel. My only problem is the amount of money it would take to defend myself does not make it worth it. A 10 hour drive plus a hotel room and two days off of work just make it not feasible. 

  • Nathan GesnerBusiness Member
    Moderator
    Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
    8y

    Many people threaten to sue but very few actually do it. If they decide to sue, you could negotiate a settlement with them and avoid court. Or you could turn around and sue the agent for malpractice or counter-sue this buyer. While you are considering the cost of defending yourself, they have to consider the cost of coming after you based on a verbal agreement they apparently violated.

    Throwing in the towel every time someone threatens to sue would have cost me tens of thousands over the years. I have had many, many threats but have never actually been sued. I believe it's because I refuse to acknowledge threats...and I almost always have evidence to back me up.

    The DIY Landlord Book4.7248 Reviews
  • Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
    8y
    To be clear, again: the status of the deposit for the rental agreement is in No Way related to anything that happened in the negotiations/contract/closing if the Sale. They are two separate unrelated transactions, since there was no written agreement changing the the handling of the deposit.
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