San Diego Housing Market News and Analysis

At this point, does it matter? Just get the tenant out as fast as you can...

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Does your lease allow cancellation? Doubt it. Say nothing, he will move then send him a bill pro-rating the remainder of the lease. Certified of course.

+100...

Parmount. Be courteous and nice right now. Get him/her to move out as fast as possible, leaving your property in the least damaged way possible....
Bite your tongue, as pissed as you might be.

Just ask him to give you a signed lease termination as soon as possible. He's not going to be anal and ask you when the notice starts......You might as well start the termination by the day you receive the signed copy (or the day it's postmarked). Don't bother telling him/her that.

AFTER he moves out, get the place professionally cleaned, give him an itemized deduction from his/her deposit. And then also you might was well stick him with a due notice of the prorated rent after the fact if the guy was jerk. Give him a copy of the signed termination and a copied proof of when you received the signed copy...Send him a bill for the prorated rent..*edit* I don't think you can deduct the proration due from the deposit.

There is a back story to all of this:

In early July I decided to terminate the management contract on my property; for a number of reasons but mainly b/c I no longer trusted them.

Then I noticed the management company had not disbursed the rental income to my account. So I call them and they state that since I had cancelled my contract, they would need to hold the rent money until they determined that I did not owe them money.

Then that same day, I get the email notice from my tenant.

Specifically that the lease was being terminated under the SCRA (Service Members Relief Act).

Is the person going to service? If so, you probably should just let it go...If the guy/gal has a valid reason, maybe it's just better to cut the person some slack....

Sounds like you had a really shitty management company.

No. My best guess is that it's being used to get out of the lease. There was recently a string of robberies in the area of my property, and in fact it's possible that my property was targeted.

I believe the perps were caught, however reportedly tenant is spooked.

Under the SCRA, the tenant needs to show you one of three things in order to legally "jump" his/her lease and not be liable for the remainder of it:

1. Permanent Change of Station (PCS) orders which show the (imminent) reporting date to the new duty station which is more than 50 miles from your rental unit.

2. A Form DD-214 showing the tenant has separated from the service and thus is losing his/her housing allowance and moving/retiring elsewhere.

3. A processed and accepted military housing voucher from a Navy/MC Family Housing Office showing the move-in date of a servicemember and his/her family who have been wait-listed.

If he/she can't come up with any of these, you have the right to the unpaid rental proceeds. Handle everything professionally like the other posters mentioned and then send your servicemember a letter detailing the disposition of their security deposit (and check, if applicable). You can't take unpaid forward rent out of it. Then file a small claim for the duration of the lease and serve it on him or his local command if he is still stationed there. Meanwhile, clean it up and advertise it for rent again. If you re-rent it to a qualified tenant before the expiration of the servicemember's lease, then you won't be able to collect "double rent" for the weeks/months your new tenant is in there. But don't dismiss the small claim. Go into court and reduce it by the amount collected (and to be collected) by the new tenant (who might be paying less rent). The judge will send you both outside to try to settle the case.

Part of the lease termination included the following language:

Provides a servicemember who receives permanent change of station orders or who is deployed to a new location for 90 days or more the right to terminate a housing lease.

I'm not going to try and stand in their way, I just want to make sure everything is legal.

paramount, the SCRA used to be referred to as the "Soldiers and Sailors Relief Act" (SSRA). I know it well, having owned rental units in the past which were in close proximity to NAVSTA SD (32nd St) for 8 yrs.

If you are happy with your tenant's excuse without proof, want them to be compelled to leave the premises presentable and think you can re-rent it quickly, then I wish you the best of luck. The key is to get them out without leaving too much debris behind which will cost you to dump and hope they don't damage anything costly to replace.

Notwithstanding the servicemember issue here (which prevents you from doing this if they qualify), I urge anyone thinking about this approach to remember that as a landlord, you have the duty to mitigate damages. This means that you have to start looking for a new tenant in a timely manner, and that you cannot simply let a place stay vacant because you aren't happy with potential. I had a landlord try to do this to me when I broke a lease because I was being relocated for my job (not service related), then try to sue me in small claims for the pro-rated amount. I found two other people who were willing to rent my place at the same price I was paying, but the landlord rejected them because he wanted more money in rent. I won in small claims because I showed that he was not making a good faith effort to mitigate.*

In my experience (from this and dealing with my parent's rental properties), small claims tends to be very tenant-friendly. The best thing to do is to just try and find someone asap, and see if the tenant will work with you on letting potential tenants view the property.

* I will admit that the fact that I am a lawyer probably helped me out in small claims, and that most tenants would probably not be able to defend themselves as well as I did.

In landlord/tenant disputes like this, it is usually the landlord side that is more aware of the legal rights and responsibilities of each side of the contract, and can win the argument if it comes to a contest. In addition, the rental contract is usually tilted toward the landlord in ways the tenant may not even know about.
However, it is better to meet with the tenant, show them the lease, remind them of their obligations, possible future legal and credit problems they could be facing, and then come to a compromise agreement. This way they are far more likely to remove all their stuff, clean up the place, and hand over the keys (formal surrender of the premises). Helps to remind them that if they do all the right things, they may get some of their deposit back or forego damage to their credit. It all goes back to the written agreement that governs your relationship, an alien concept to many tenants.
To really insure you two are on the same page, put your new understanding down on paper, which is legally an ammendment to your contract. I always keep a tablet with carbon paper for such an occassion. If you are under 30, ask anyone over 50 what carbon paper is.

Jwizzle: Are you saying it is ok for a tenant to subjectively break a lease and incur no penalty?

Does this apply equally to commercial buildings? In commercial buildings I've leased I had to put up a personal guarantee ( credit card or bank routing number ) with some owners.

So only if the owner can't find a new tenant then the leaseholder becomes liable?

The object of damages is to make the landlord whole. That means if the owner finds a new tenant (or the court finds that he unreasonably did not mitigate his damages and look for a new tenant), the lease breaker only has to pay damages for the amount of actual loss.

There may be some damages for getting the place ready to rent out again and maybe a month of lost rent when showing and getting a new tenant in there. But owners don't get a windfall (damages & rent from a new tenant) just because the lease was broken.

Landlord/tenant law is pro tenant, not pro landlord.

Yes, that is exactly what I am saying. I am pretty sure it only applies to residential properties, not commercial, although i'm not a real estate attorney so don't take this as legal advice. California law is very pro-tenant for residential situations, which overrides pro-landlord leases. I believe there is less law regulating commercial leases because you are usually dealing with more sophisticated parties.

And in the context of residential landlord-tenant law, yes, a leaseholder is really only liable to the extent that the landlord cannot find a new tenant (and like I said, landlord needs to show diligence and good faith in trying to find a new tenant). Like matt-waiting above said, this is to prevent the landlord from receiving a windfall from the lease being broken - the most that can happen is that the landlord should be made whole when this happens (i.e. gets rent they expected).

Jwizzle and Matt: Thank you. Very clear. Fair enough.

Agree that commercial is different from residential. Commercial will follow you down collecting anything they can until you BK. Then tap your personal guarantee. (fortunately haven't been there, ...yet ;)

Didn't fully understand that tenant has such power. Been lucky.... thx.

Many shrewd, dishonest people out there.

Owning so-called investment properties is definitely not for everyone.

In Temecula, as "investors/sharks" have come in and bought up short sales and foreclosures the market has become flooded with available rental properties.

This has led to all sorts of interesting consequences IMO, including an out-of-balance rental market.

May be time to exit...