San Diego Small Claims Court

9 Replies | San Diego, California

Hello BP Investors,

I recently acquired a 6 unit building in the city of San Diego.  Acquisition date 3/26/19.  On 4/29 a tennant gave 8 days notice to move out.  I had the PM let the tennant know that 30 days was required.  Long story short the tennant moved out on 5/6.  We scrambled and found a new tenant who moved in on 5/28.

I instructed the PM to keep 15 days rent from the deposit as I didn't want to gouge the tennant.  PM was one day late returning the deposit.

Tennant is suing me Violating the Implied Warranty of Habitability,  Violating the Covenant of Quiet Enjoyment by not timely returning the security deposit and not performing the necessary repairs to maintain the property as a safe and conforming dwelling.  He is stating that this rose to a level of Constructive Eviction.  He is asking for the below amounts.

$724.80-Unrefunded portion of the deposit

$14375.00-Rent abatement for entire tenancy He is stating 46 months

$3100.00- 2X Deposit 

$1250.00-Moving expenses due to Constructive Eviction

$75.00-Tennants cost for the suit.

He was on the lease from 6/1/17-5/6/19.  No where near 46 months.  The same PM managed the place for the whole time the Tennant lived there and all maintenance requests appear to have been handled in a timely manner.  There was zero maintenance requests during the time that I owned the property.  When we turned the unit all we did is paint,  add blinds to the windows and some new light fixtures.  The unit was in good shape when he moved out.

What would be a good way to tackle this case?  Am I even liable for repair requests that may or may not have been completed when I didn't own the property?

Thanks in advance,

Josh

Have you been served?  The reason I ask is I get a threat of suit fairly regular and have never been sued for anything RE related.  I have even been threatened to be sued by a lawyer.   Nothing...   Even the lawyer had no case.

If you have been served then counter sue for the full loss rent that is due which is 7 more days than you charged for.  Come prepared with every tenant correspondence that occurred over his tenancy.  Make sure you have the date that his tenancy started (i.e. the day he was added to the lease - any stay before then he was a guest).

If your description is accurate, the only case your tenant has is for getting deposit late but you did not charge him for the full costs of the early move-out.  I suspect if this goes to court, and you have the artifacts that show what you described, the tenant will end up paying you for his early lease termination (assuming the lease calls out that at least a month's notice is required).

Unfortunately, it will consume some of your time.  He is probably hoping you offer some sort of compensation to go away.  I am a stubborn SOB when it comes to this type of thing and therefore, just for the principle, I would not offer a cent and would be counter suing.  It may not be the smartest use of my time but it makes me feel good.  You have to decide for yourself if you want to pay him to go away.

This is small cost item but …   Do you have some sort of asset protection?  I suggest an umbrella coverage because it is the most dummy proof and because if I ever get sued I will have a heavy weight in my corner (the insurance company).  Make sure you have some form of asset protection.

Sorry this is happening to you.  Good luck

@Dan Heuschele thank you for the encouragement. I have actually been served and have a court date next week. You described my plan to a T. I will show up with all supporting documentation and hope for the best. I do not have an umbrella policy but do hold title in an LLC. I will be happy if I can get the suit thrown out but, won't be counter suing. I don't want to waste another day to this mess.

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Originally posted by @Josh Buchan :

@Dan Heuschele thank you for the encouragement. I have actually been served and have a court date next week. You described my plan to a T. I will show up with all supporting documentation and hope for the best. I do not have an umbrella policy but do hold title in an LLC. I will be happy if I can get the suit thrown out but, won't be counter suing. I don't want to waste another day to this mess.

I have zero experience with actually being sued but you sound ready.   It will waste some of your time.   I did not know counter suing would increase the time necessary to deal with this.  I would still consider attempting to collect the full amount due because it may convince plaintiff to withdraw the case if they realize suing could cost them money.

You probably know this but LLC requires separation of LLC assets from your assets to provide the desired protection. Many RE LLCs do not have this separation of assets.

Good luck


Please let us know what happens. I always want to confirm these scary stories turn out to be nothing. 

You shouldn’t need it, but, good luck. 

@Josh Buchan get a lawyer and pay for a phone consultation let him tell you what to do to counter. It may cost you 500 bucks but less than what you are being sued for.You can counter for your court expenses and lawyer expenses.

The tenant has to proof his case. Research the laws he is basing his case on.

@Josh Buchan

Not a lawyer, but as a former property manager, I went to court a handful of times on behalf of clients.

As for the big claim of rent abatement, the judge will likely disregard it. I had a tenant claim back rent like that as well. Here’s how it went:

Judge: did you pay rent each month?

Tenant: yes, but the home was in shambles, I’d like my rent back due to inhabitability.

Judge: denied. you paid rent, and in exchange you lived in a home. That’s all in the past now. Let’s move on...

Now, where you will probably lose is in regard to the security deposit. You mentioned the deposit went out to the tenant a day late. If that’s true, and the deposit went out later than the required 21 days post move out, then you’ll be giving the full deposit back. The real question is will you get penalized further? I had a deposit dispute, and when the tenant won, not only did she get back her $1000 deposit, but she was also awarded punitive damages equal to 3 times the deposit, if I recall correctly. I believe 3x is the max on punitive damages.

This is small claims court, so you can’t even utilize a lawyer. I’d make an attempt to settle ahead of court. But sometimes people are rash and stubborn.

Thanks for the reply Eric.  The security deposit is what I am concerned about.  The PM states the security deposit was returned late because he was waiting for the tenant to pay the rent that was due.  The PM is party to the suit so I will let him argue his point and hope for the best.

Originally posted by @Eric G. :

@Josh Buchan

Not a lawyer, but as a former property manager, I went to court a handful of times on behalf of clients.

As for the big claim of rent abatement, the judge will likely disregard it. I had a tenant claim back rent like that as well. Here’s how it went:

Judge: did you pay rent each month?

Tenant: yes, but the home was in shambles, I’d like my rent back due to inhabitability.

Judge: denied. you paid rent, and in exchange you lived in a home. That’s all in the past now. Let’s move on...

Now, where you will probably lose is in regard to the security deposit. You mentioned the deposit went out to the tenant a day late. If that’s true, and the deposit went out later than the required 21 days post move out, then you’ll be giving the full deposit back. The real question is will you get penalized further? I had a deposit dispute, and when the tenant won, not only did she get back her $1000 deposit, but she was also awarded punitive damages equal to 3 times the deposit, if I recall correctly. I believe 3x is the max on punitive damages.

This is small claims court, so you can’t even utilize a lawyer. I’d make an attempt to settle ahead of court. But sometimes people are rash and stubborn.

This case turned out positive for me.  The judge ruled in my favor.  The tenant receptively put his foot in his mouth during his testimony.  When it was my time for an argument at asked the judge if it was even necessary at that point.  He said no and ruled in favor of me.  The only regret was not counter suing for the rest of the security deposit that I was entitled to.

Unfortunately when things like this come up one must devote a substantial amount of time to prepare and attend the hearing.  In my case I spent 3 hours preparing and 4 hours at the courthouse.

On another note,  while waiting for my case there was another security deposit despite.  The judge stated that if the society deposit is returned late then the plaintiff must be able to prove "bad faith" in order to receive damages.


Originally posted by @Bill Brandt :

Please let us know what happens. I always want to confirm these scary stories turn out to be nothing. 

You shouldn’t need it, but, good luck.