Daily Development for Monday, August 2, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu
LANDLORD/TENANT; SECURITY DEPOSITS; REFUND STATUTES: Texas court awards $60,000
plus attorneys fees for failure to refund residential security deposit.
Hardy v. 11702 Memorial Drive 2004 WL 1584909 (Tex. App. 7/15/04)
Tenant negotiated to rent what appears to have been a palatial home on Memorial
Drive in Houston, commencing October 1. The rent was $6500 per month, and tenant
also agreed initially to pay a $6500 security deposit, but landlord determined
that the tenant had a bad credit record and demanded instead a $20,500 security
deposit. Tenant paid the deposit. Landlord owed a commission to the broker in
the amount of one month’s rent, and asked the tenant to make out the first rent
check to broker instead of to the landlord. Tenant did so, but the check was
drawn on a closed account and bounced. (Maybe the credit report was accurate -
but tenant had enough resources to hire a good attorney - read on.)
Subsequently, before moving in, Tenant sent Landlord a letter thanking Landlord
for releasing her from the lease. Landlord denied that there had been any such
release, but treated the letter as a repudiation of the lease. Landlord promptly
relet to another tenant for a period about six weeks short of the original
tenant’s lease, commencing only a few days after the original lease began.
Tenant then sent Landlord a letter claiming that there had been a surrender, and
demanding return of the security deposit, giving an address to which it should
be returned.
Over a month later, Landlord had not returned the security deposit and had not
sent Tenant a letter detailing its damages supporting retention of the security
deposit. Landlord in fact gave the letter, backdated to thirty days after the
demand, only after Landlord became aware that Tenant was gearing up to sue under
the Texas security deposit law (which provides for treble damages and attorney’s
fees for bad faith retention of the deposit, and makes failure to provide an
itemization of damages within thirty days of demand a prima facie case of bad
faith.) The letter claimed damages approximately $10,000 in excess of the
$20,500 security deposit.
Landlord claimed that the letter had been timely prepared but not timely mailed.
The lower court in fact had found for Landlord, but the appeals court here
reversed, finding that there was no excuse for the late mailing and the landlord
was subject to the presumption of bad faith under the statute. But this finding
in the end mattered little, because the court went on to shoot down each and
every element of Landlord’s damages claims as set forth in the letter. A few of
the claimed damages items were obviously wrong (such as a claim for the first
month’s rent, even though the house had been relet for apparently the same rent
after only two days, and despite the fact that there was a second claim for
those two days.) But some other items are interesting enough to warrant
discussion.
First, the landlord claimed an amount for the $6500 brokerage fee for renting
the place. The tenant, remember, had agreed to send the first month’s rent check
to the broker for that fee, and the check bounced. But the court held that the
lease did not impose an obligation on the tenant to pay the brokerage fee, and
thus the landlord could not claim this as contract damages. The landlord also
claimed the $25 NSF fee on this check, and the lease did provide an obligation
for the tenant to pay NSF fees, but the court ruled that this agreement related
only to checks made out by the tenant to the landlord, and the check to the
broker did not qualify, even though it had been written to satisfy landlord’s
obligation to the broker.
Then the Landlord claimed damages for the period of time at the end of the
substitute tenant’s term that was still part of the original term. The lease had
provided for the landlord to be able to accelerate rent. The court held,
nevertheless, that the Landlord had not shown that it had suffered damages for
this period because the substitute tenant might hold over.
Then the Landlord claimed money for a “make ready” fee in preparing the house
for the Tenant. The court stated that the Tenant had agreed to take the house
“as is,” and that the Landlord had not demonstrated that it any contract
obligation to make the house ready. Further, although Landlord had claimed that
it had incurred $6500 in expenses to relet, it did not substantiate this claim,
so it lost on this issue as well.
Landlord claimed $1100 in utility costs. It is not clear to what this charge
related, but the court concluded that the cost was no recoverable because the
lease required Tenant to make her own arrangements with the utilities, and
therefore, presumably, the Landlord was not compelled to incur any costs as a
consequence of the lease.
An interesting feature of the case is that the Landlord was a limited
partnership whose general partner was a corporation. For reasons not disclosed
in the case, the President of the General Partner caused the partnership to
transfer the property to him personally after this dispute had been joined. The
court noted that the Texas statute makes successor landlords liable for return
of security deposits, but makes the original landlord liable as well until the
tenant has been supplied with a statement that the prior landlord has passed
along such deposits to the successor. Such a statement was never supplied, so
the partnership, the corporate general partner, and the President were jointly
and severally liable for the $20,500 deposit, tripled to $61,500, plus costs and
attorney’s fees. Sounds like a collectible judgment. A pretty good haul for a
tenant with bad credit who bounced her first rent check.
Comment 1: Normally we don’t spend much time with state specific issues such as
the Texas statute. It is somewhat more severe that many statutes, particularly
in that it awards attorney’s fees and renders successor owners liable. But the
amounts involved and the court’s ruling on the claimed damages, which are common
law issues, make the case of some interest. In the editor’s view, the NSF issue
was just insult to injury, but probably should have gone the Landlord’s way.
After all, the apparent agreement was that the check to the agent was in
satisfaction of the rent obligation. It in essence was a rent check.
Further, although the court said that there was no evidence that the $25 charge
was in fact incurred by the Landlord, it would appear that this charge was in
the nature of a liquidated damages agreement, and was payable even absent
evidence that the charge was in fact incurred.
Comment 2: Further, is it accurate to say that the Landlord had no obligation to
prepare the place for Tenant’s habitation because of the “as is” clause? The
editor is not familiar with the Texas residential implied warranty of
habitability, but typically the landlord’s duties under that doctrine are non
waiveable. Compare Lee v. Perez, 120 S.W. 3d 463 (Tex. App. 2004) (The DIRT DD
for 5/7/04) (Although “as is” clause may be adequate to waive certain implied
warranties of commercial suitability in commercial lease, where clause in
question refers to the condition of the premises, it is not a waiver of
landlord’s implied responsibility to provide a premises with proper zoning for
tenant’s business). (The editor hates the Lee case with a great passion and
would welcome its early reversal or repudiation.)
Thus, although perhaps the Landlord may have no duty to paint the walls, it
would have a responsibility to insure that the residential premises are “decent,
safe and sanitary,” as required by a typical warranty of habitability, and this
might easily involve some cost.
It could be argued, of course, that the landlord has this duty generally, and
that therefore it was not required of the landlord specifically under this
lease. The editor does not believe that the court reached that level of
subtlety.
Comment 3: The court’s discussion of utility costs also seems off base. If the
Tenant agrees from the outset of the lease to pay for utilities, and fails to
take possession, the Landlord normally and foreseeably will be required to
continue to keep the utilities on to protect against fire, mold, vandalism, and
to facilitate the reletting of the premises. The utility costs for the period of
time that a substitute tenant is not obligated to pay for utilities does appear
to the editor to be a legitimate damages claim. Here, note, that the “down time”
was only a few days, and the $1100 claimed does seem a bit excessive.
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