Verbal Lease Agreement

Maybe I missed the clarification but since she is only renting this property herself, is this so-called "landlord" within her rights to rent out a room at all?

I've been following along, too.

Couple of things:

1) She may be able to keep some prtion of the remaining $75 if she had to re-advertise.

2) Are you sure she has an attorney? Maybe it was another "friend" calling and pretending to be a lawyer. It appears to be pretty clear from what Debra posted that she cannot hold / sell your property since it wasn't part of a written lease agreement.



From what Debra posted any notice would have to be in writing, certified mail, etc and would allow 30 days IF she had the right to your property, which she doesn't.

So, the only thing she may have a claim on is the additional $75. She wants you to believe that she hired a lawyer to keep from giving you the $75 difference in the rent/deposit?

She wants you to believe that an attorney can call and leave a voice message instructing you that you have less than 24 hours to respond or he'll file a claim?

A claim for what? She has the money AND she has illegal possession of your property. YOU would be the one filing a claim. What landlord that has your deposit which more than covers what is owed AND has your property illegally is going to go to the court?

I say let her. Could be fun hearing the judge tell ger to taking a flying leap for wasting his time.

Hi, squinney.
Well, I checked him out online, and he appears to be a real for real attorney, assuming he is who he says he is. I also can't figure out what claim he may be referring to. I guess I'll call him back in the morning and find out.

Debra and Joe know more about this stuff, but the only reason I can think of for her to hire an attorney is in case you file something against her for stealing your property.

If you call in the morning, don't give any information. Don't mention terms of the agreement, amounts, dates or anything! Ask what claim he intends to file and tell him you'll call him back with your decision after speaking with your attorney. Let us know what he says.

If it were me, I'd wait until the last minute, call and say where you will be to recieve your property, forget the $75, drop it and go on with your life... without this "friend."

I would suggest that you get back the guitar (undamaged) and move on. Life is too short to continue bickering.

It sounds to me like she is alledging that there is additional that she feels she is entitled to and that would be the claim they would file for.

At this point, If I were you, I'd call the lawyer and tell him/her you'll be by tomorrow afternoon to pick up your guitar, go and get it and leave it at that. That was what you were looking for originally isn't it?

I just don't know how I feel about paying her $75 for putting me through all this trouble. I haven't decided, yet.

Echi--

She needs that $75 to pay her lawyer--partially pay her lawyer.

I agree that it is your $75. I also agree with the Life is Short Crowd.

You've won a moral victory.

Okay. I just got off the phone with her attorney, and he said that my security deposit is non-refundable.

Echi--

Take the guitar and run. Start composing a naughty song: Ballad of the Grasping Landlady.

Her attorney wants me to pick up my stuff on the condition that I sign an agreement not to sue her for any damages... after he acknowledged that she has no right to hold my property!!

Take it. Go. Move on.

$75 is so not worth the hassle of taking this further.

I'm not certain what he means when he says he is going to file a claim with the court. Perhaps he is threatening to sue you for alleged "unpaid rent" in the amount of $250. However, a lawyer has a duty to ensure that whatever claims he files on behalf of a client are not frivolous. Based on the information you provided, if the lawyer follows through on his threat, he would probably be subject to sanctions under the rules of civil procedure. See:

CIVIL PRACTICE & REMEDIES CODE
CHAPTER 10. SANCTIONS FOR FRIVOLOUS PLEADINGS AND MOTIONS

http://tlo2.tlc.state.tx.us/statutes/docs/CP/content/word/cp.002.00.000010.00.doc

By threatening to file a claim against you if you do not accept their offer of settlement by noon today, I believe the lawyer is trying to intimidate you into forfeiting whatever claims you have against his client and simply walk away from the matter with your guitar.

If all you want from this ordeal is your guitar back, then perhaps you should call the lawyer, agree to his terms, and make arrangements to have your property returned. He may require you and your "friend" to sign a mutual waiver of claims before your property is returned to you. [If so, however, she AND her lawyer are DEPRIVING of you of your property and promising to restore it only upon their receipt of something valuable: A written waiver of your claims against her. Refer to the criminal theft of property statute posted earlier. Under the circumstances, a mutual waiver of claims might be voidable for reasons of duress: you are being threatened with a frivolous lawsuit and your property probably won't be restored to you unless you sign the waiver.]

Depending on how you feel about the situation, you should probably do what it takes right now to get your guitar back. Upon the return of your guitar, you will only be out $75.00. You will have plenty of time in the days and weeks to come to decide if it's worth your time, effort, and emotional well-being to seek to have a waiver of claims voided and to pursue her for statutory damages available for her wrongful retention of a portion of your security deposit and for her wrongful seizure of your property.

What are your claims against her?

See damages provision of the Landlord's Lien chapter (posted earlier in its entirety) for your friend's unlawful seizure of your guitar:

§ 54.046. VIOLATION BY LANDLORD. If a landlord or the landlord's agent wilfully violates this subchapter, the tenant is entitled to:

(1) actual damages, return of any property seized that has not been sold, return of the proceeds of any sale of seized property, and one month's rent or $500, whichever is greater, less any amount for which the tenant is liable; and

(2) reasonable attorney's fees.

***

As you can see, you are entitled by statutory law to the return of your guitar AND $500 in damages AND attorney fees due to her violation of the law. If she sells your guitar, you are entitled to actual damages--meaning the replacement value of the guitar, AND the proceeds of the sale (meaning, she must be disgorged of any funds unlawfully gained), AND $500, AND Attorney Fees.


See also the damages provision of the statutory chapter regarding security deposits:

§ 92.109. LIABILITY OF LANDLORD. (a) A landlord who in bad faith retains a security deposit in violation of this subchapter is liable for an amount equal to the sum of $100, three times the portion of the deposit wrongfully withheld, and the tenant's reasonable attorney's fees in a suit to recover the deposit.

(b) A landlord who in bad faith does not provide a written description and itemized list of damages and charges in violation of this subchapter:

(1) forfeits the right to withhold any portion of the security deposit or to bring suit against the tenant for damages to the premises; and

(2) is liable for the tenant's reasonable attorney's fees in a suit to recover the deposit.

(c) In an action brought by a tenant under this subchapter,
the landlord has the burden of proving that the retention of any
portion of the security deposit was reasonable.

(d) A landlord who fails either to return a security deposit
or to provide a written description and itemization of deductions
on or before the 30th day after the date the tenant surrenders
possession is presumed to have acted in bad faith.

***

As you can see, you're entitled to $100 plus three times the amount wrongfully withheld (3 X 75 = $225 OR [see below] 3 X 325 = $975).



You should also note that the verbal sub-lease agreement might be void as a matter of law or voidable at your option UNLESS your friend can prove that she had HER landlord's consent to sublet the premises or a portion thereof:

§ 91.005. SUBLETTING PROHIBITED. During the term of a lease, the tenant may not rent the leasehold to any other person without the prior consent of the landlord.

If the entire agreement between you and your friend was void or voidable at your option because she did not have her landlord's consent to sublet the premises, she may not be entitled to any rent at all and probably should have returned your entire deposit. With the exception of circumstances that may fall within a doctrine of equity, an illegal contract is unenforceable. That may be a bargaining chip in your favor.

Lots of things to consider, but the most important one is how this affects your life. You might be far better off if you cut your losses now, accept the return of your guitar, and get on with your life.







Her attorney is lying to you. According to statutory law, your "friend" landlord has a DUTY TO REFUND the security deposit. The only exception is if you have a written lease agreement that conspicuously and specifically provides that the deposit is nonrefundable in the event you fail to provide sufficient advance notice of your surrender of the premises.

See the LAW:

§ 92.103. OBLIGATION TO REFUND.

(a) Except as provided by Section 92.107, the landlord shall refund a security deposit to the tenant on or before the 30th day after the date the tenant surrenders the premises.

(b) A requirement that a tenant give advance notice of surrender as a condition for refunding the security deposit is effective only if the requirement is underlined or is printed in conspicuous bold print in the lease.

(c) The tenant's claim to the security deposit takes priority over the claim of any creditor of the landlord, including a trustee in bankruptcy.

***

§ 92.107. TENANT'S FORWARDING ADDRESS. (a) The landlord is not obligated to return a tenant's security deposit or give the tenant a written description of damages and charges until the tenant gives the landlord a written statement of the tenant's forwarding address for the purpose of refunding the security deposit.

(b) The tenant does not forfeit the right to a refund of the security deposit or the right to receive a description of damages and charges merely for failing to give a forwarding address to the landlord.

***

Don't you hate liars? His credibility is non-existent. The next time he says something to you, make him back it up with an actual citation to the law.

This looks pretty good...

SOURCE

Thanks, again, DL! (I'm still reading your post.)

I was responding to your other two posts--and submitted. I didn't see this post, but I anticipated that he would require you to sign a waiver of claims. Frustrating, huh? Not only did the attorney LIE to you about the law claiming the deposit was nonrefundable, he has made himself an accomplice in her criminal theft of property by offering to restore the property only in exchange for something valuable--the waiver of your statutory rights to damages for her unlawful behavior. I see some potential ethical violations here.

I understand what all of you are saying... that I should just get my guitar and walk away. After all, that's what I wanted in the first place. But I feel that, now, the circumstances have changed, considerably. Besides all of her legal wrongdoings, which were probably the result of her ignorance (i.e. non-malicious), there still is the fact that she found another roommate, who I assume also paid a deposit. So now my "friend" comes out ahead, after fighting me tooth and nail every step of the way. Coupled with the dishonest intimidation tactics of her lawyer friend, it makes it very hard for me to just let her off the hook... in fact, pay her to walk away. It's not fair, and it doesn't feel good.

Should I go to pick up my guitar and then refuse to sign the waiver? That's what I would like to do.

Given your feelings, perhaps that should be your next step. If she still refuses to restore your property to you in the absence of a signed waiver of claims, request that you be given a copy of the waiver so that you may take it to an attorney for a consultation.

Will do, Debra Law. Thank you for arming me with the facts. You are a godsend.
I'm waiting for her lawyer to call me back, now. Hopefully, I can retrieve my guitar today!

I have to admit that, although I do feel I have been wronged, I am still really enjoying this whole process. It feels empowering to learn about the law. It must be a lot of fun, sometimes, to be a lawyer (esp. when you have a good case).