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Tug_Kitten

Security Deposit

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The manner in which a landlord can make deductions from your security deposit depends on the laws of your unidentified state. However, the implication of your post is that he shouldn't be able to do this because the late fees "were never previously billed." If so, why would a landlord need to "bill" a late fee? Presumably, your lease provides for late fees. Does it say anything about those fees needing to be "billed" in order to be recoverable?

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Obviously, it is happening, so the "can" question is moot. Whether there's anything to be done about it depends on how the lease is worded, among other things. Many landlords explicitly make sure their leases say that a failure to make demand doesn't mean the landlord is waiving its right to pursue (and state law may make it such that it wouldn't even be necessary to mention that in a contract for the landlord to pursue).

You're free to dispute a charge in writing and then sue landlord for what you think is a wrongfully withheld amount. Can't know which way a court would decide from here though.

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I live in California. I don't have my rental agreement handy, but I will look at the wording. I went to a website "California Tenant Law" and it stated that late fees are illegal to begin with. It notes the case of Orozco v. Casimiro [(2004) 121 Cal.App.4th Supp. 7] where the appellate court identified late fees as "liquidated damages" within the meaning of Civil Code 1671, and declared them to be illegal and void, absent extraordinary circumstances. Is this valid and will it halp me any? I just want to know if I have any chance if I take them to court. They always accepted my rent (i usually mailed it in and I'm assuming there were times when it took longer than others) without any additional contact with me regarding the late fee. A couple times the payment never made it and I took the check directly to their office. At that time they asked for the late fee and I did pay it. I also looked on the California Department of Consumer Affairs website and it states that if the landlord does not refund my deposit or send a statement of deductions within 21 days, they lose the right to keep any of the security deposit and must return the entire deposit to me. They did my final walk through on May 11 and I got their "bill" on June 11.

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Orozco v. Casimiro does not say that late fees are always void absent extraordinary circumstances. The landlord in that case did not plead or prove that the direct damages suffered as a result of the late payments were difficult to assess which would have made the late fee a viable liquidated damages clause. You gave the date of the walk-through but not the date the tenancy officially terminated. The 21 days runs from when your tenancy actually terminated which is not necessarily the date you moved out. For example, if you paid all of the rent for May, then your tenancy did not terminate officially until 11:59 p.m. on May 31st and the 21 days would run from that date. Consult local counsel.

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"I went to a website 'California Tenant Law' and it stated that late fees are illegal to begin with. It notes the case of Orozco v. Casimiro [(2004) 121 Cal.App.4th Supp. 7] where the appellate court identified late fees as 'liquidated damages' within the meaning of Civil Code 1671, and declared them to be illegal and void, absent extraordinary circumstances. Is this valid and will it halp me any?"

If that's truly what this web site says, it is wrong. First of all, the Orozco case was decided by the Appellate Division of the Los Angeles County Superior Court, not by the Court of Appeal. Second, the tenant in the Orozco case argued that "late fee provisions in a residential lease are never valid[] since the landlord is only entitled to interest on the late-paid rent as damages, which is easily ascertainable as a matter of law." 121 Cal. App. 4th Supp. at 11. However, the Appellate Division rejected that argument out of hand: "Appellant's legal premise . . . is simply wrong." Id. The Appellate Division stated the applicable law as follows: "As is apparent from the language of section 1671, a liquidated damages provision in a residential lease is normally void, except where the parties specifically agree and 'when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.' Once the landlord shows that it was impracticable or extremely difficult to fix actual damages, the amount the parties agreed upon is presumed to represent the amount of damage suffered by the breach." Id., at 10-11. Ultimately, the judgment awarding the landlord late fees was reversed because the landlord's "complaint did not plead that the late fee was impracticable or extremely difficult to fix [and the landlord] did not present any such evidence at trial." Id., at 12.

"I just want to know if I have any chance if I take them to court."

Of course you can take your landlord to court. I assume you meant to say that you want to know if you have a chance of prevailing.

"They always accepted my rent (i usually mailed it in and I'm assuming there were times when it took longer than others) without any additional contact with me regarding the late fee."

But that's not likely relevant. The landlord shouldn't be forced to reject your late rent simply because it was late and didn't include the late fee. As for mailing it, it was up to you to ensure it was received by the due date.

"I also looked on the California Department of Consumer Affairs website and it states that if the landlord does not refund my deposit or send a statement of deductions within 21 days, they lose the right to keep any of the security deposit and must return the entire deposit to me. They did my final walk through on May 11 and I got their 'bill' on June 11."

That's a whole different story and probably a much better way to deal with this. Look at Civil Code section 1950.5(g): http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=01001-02000&file=1940-1954.1.

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Okay, now I have received a letter from their lawyer. He states that they sent me the statement of deductions on June 2 along with the ledger and copies of the rent checks and money orders, etc. to my last known address (their apartment building I moved out of!). I know this is a lie! The statement I did receive from them at my new address contained a ledger that was dated June 5. It did not contain any copies of checks or money orders and they also did not send me an itemized list or copies of invoices for the cleaning fees they charged me as the Civil Code 1950.5(g)(2) states they are to provide. So, how could they have sent it on June 2? I gave them my new address the day they did my final walk through and they took possession of the apartment. I spoke to their secretary numerous times after that and she stated to me at those times that they were waiting on the owner or whatever to go over the paperwork. She also stated to me that they were behind on paperwork and that is why they had not been able to send me anything. The day before I received their statement, the secretary had called me to let me know that their accountant was going over everything and they needed my new address to send it out. That right there tells me they did not send it previously. I just need to know where I go from here. I am wondering if I have any chance to beat this if I take it to court. Also, I don't know if I should send a reply to them or their lawyer stating the above facts or continue with my own lawyer. Please give me some advice.

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