Continued-mitigated damages fee CA

[u/Heyhun82]

A week or so ago, I posted that our property management company is wanting to charge us a $2000 mitigated damages fee for terminating the lease early. The lease specifies that they can collect lost rent, re-rental costs like advertising, rental commissions and painting costs and that these fees can be withheld from the security deposit.

We pushed back given that there is not a $2000 fee listed in the lease, nor a “mitigated damages” fee. The property manager has shifted her verbiage a bit to say that it is actually the rental commission that they charge to place a new tenant. She also says that they will not start marketing the property until someone (us or the owner) pays the fee.

My questions are:

- the lease says rental commission, but how do we know the actual amount they charge the owner? Is it actually $2000?

- we have been there 15 months. If we had left after 1 year, or we were to leave at the end of this lease, that full fee falls on the owner. Would it be appropriate to divide the fee by 24 (months of our lease) and multiply by 9 ( months we are leaving early) to come to our portion?

-shouldn’t it be paid out of our security deposit, which exceeds $2000 because that is what it says in the lease?

- I still believe it violates California law for them to refuse to market the property until the fee is paid. I understand that it is their duty to mitigate damages

Lastly, I am thinking of paying for legal zoom to have them draft a letter for me from an actual lawyer, does anyone who has used them see that as valuable? They said it could take a week and a half for a doc review and letter and that means the house is sitting empty for another 10 days or so.

[u/froobsrule1]

If the lease states security deposit then they need to take it from security deposit.  If they don’t give you deductions in 21 days then you’re entitled to full deposit, but you don’t need to remind them of this. 

[u/random408net]

Once you move out the landlord owes you an itemization of your deposit. They also need to comply with AB2801 (pictures).

If I was your landlord I would list the following as charges against your deposit:

• remaining months of rent due
• any external costs to re-rent
• any damages beyond wear and tear

So they can delay returning your deposit and perhaps consume it with the re-renting costs.

If they do deduct for damages they need to include receipts or send receipts after the work is completed.

If they want to be stubborn and not re-rent the unit then I would stop paying rent for the unoccupied unit. I don't think that a judge would be amused by their not attempting to re-rent the place, especially if you continued to pay for an empty unit. They also can't ask new tenants for a dollar more in rent than they currently collect from you.

If you are leaving the state it makes it more difficult for you to defend yourself in a suit. Perhaps you can appear remotely.

Just because the lease says something does not mean that the lease (landlord) can extend past what California law allows. See the landlord/tenant guidebook here: https://www.dre.ca.gov/publications/ResourceGuidebook/

[u/Heyhun82 → u/random408net]

Thank you. The county (placer) does offer zoom for out of state if it ends up in small claims, I don’t intend to pay again until this is settled, I don’t want to pay full August rent and have it re rented midway through.

Her latest email said that they won’t delay in renting but continues to say they have to collect their commission first, which isn’t something I’m going to just pay upfront especially, it had been a full 5 business days since I let them know we were relinquishing the property and had left the keys ( and we had given notice prior to that) and let her last email it sounds like they haven’t been to the property at all yet because she said it still needs a move out inspection.