breaking a lease...

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xXx_JeNnErS_xXx

Bluelighter
Joined
Jun 6, 2002
Messages
234
Location
Austin, Tx
On August 1st, 2002, I moved out into my first new apt. pressed for time and cash, I got the first readily available one, because of the situation I was in needing to move out right away.
Me and my boyfriend signed a lease to last until August 2003. We stayed there for two months. The place was sick. There was roaches, loud neighbors, and crackheads walking by at nighttime.
We had already signed our name and wanted to try to stick it out, which became impossible. So, we went elsewhere and applied at a much nicer apt. community, where we got accepted. :)
Now we live in our new home and the constable's office dropped me off some paper's that are telling me that the old roach infested apts. are sueing me for 1,000 something dollars. They figure 500 as a reletting fee and the other 500+ for charges they made up (cleaning the stove, cleaning the carpet).
The question I would like to ask is this...
My credit is already messed up for the next seven years, so I don't mind an eviction being on my rental history. What I do mind is if when I don't show up in court are they going to send out a warrant for my arrest or will they just file it as an eviction since it is a small claims court?
Thank you for your time reading this and any suggestions are apprieciated. :)
 
Since this is a civil and not a criminal matter, no warrant will be issued for your arrest. By not appearing, they will enter a default judgement, meaning they win because you are, in essence, admitting their claim by not showing up.
 
Forget to add this above...
While the penalty for your no-show is default judgement, the court can go to great lengths to recover the money from you.
And, while you may not want to go to court, small-claims judges might be willing to hear out your side of the story and award your landlords less.
Whatever happens, good luck!
 
If I were you, I'd show up and fight it.
You would want to argue that your landlord broke the lease himself, by violating the implied warranty of habitability (that's sort of an automatic guarantee that the place you rent will be livable).
If the apartments are as bad as you say, there's a decent chance that the court will recognize this landlord, as he may have been before the court before. So you may get a ruling in your favor without much additional work on your part, if you are lucky.
Do you have any evidence of the conditions you experienced? Did you ever write your landlord a letter to complain of them? Did other tenants you know have similar complaints?
Having this crap on your record is going to make it massively more difficult for you to rent in the future. It may well be worth a day in court to try to fight it.
Good luck.
 
Most courts will tell the landlord that his deposit is to cover cleaning and miscellaneous costs. A 500 dollar re-letting fee? That doesn't sound right. The apartment complex has an obligation to try to re-rent the property. The only money you should owe is the rent for the amount of time the apartment was vacated through the term of the lease.
Yes, go to court. The worst case is that you would owe what they are suing for. Best case you would owe nothing. It may land somewhere in between. I wouldn't let them off with an easy win by default.
By the way, I don't know where Dr. J is, but the courts here basically won't do squat to try to recover the money. It would be up to the landlord.
For more info, look here:
http://www.nolo.com/lawstore/products/category.cfm/catID/42F1A487-5FDD-45C5-84A2E323ABF31CC5
[ 27 December 2002: Message edited by: Exx_head ]
[ 27 December 2002: Message edited by: Exx_head ]
 
Thank u for all of your useful info. I have decieded to go ahead and try to explain my story, because I am POSITIVE they have seen these apts. before! :) Thank u.
 
Originally posted by xXx_JeNnErS_xXx:
Thank u for all of your useful info. I have decieded to go ahead and try to explain my story, because I am POSITIVE they have seen these apts. before! :) Thank u.
Good for you. It can't hurt, anyway. Let us know how it turns out. I've had legal battles with LL's myself, I know how empowering it can be when you win.
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Originally posted by Mahan Atma:
You would want to argue that your landlord broke the lease himself, by violating the implied warranty of habitability (that's sort of an automatic guarantee that the place you rent will be livable).

On a related note, I'd explore the doctrine of "constructive eviction." At least here in Indiana, "lessees may assert constructive eviction as the basis for a claim or a counterclaim against a lessor whose act or omission has materially deprived the lessee of the beneficial use or enjoyment of the leased property to such a degree that the lessee must leave. Lessees also may assert constructive eviction as an affirmative defense to a suit initiated by the lessor following the lessee's departure and refusal to pay rent." Freedom Exp., Inc. v. Merchandise Warehouse Co., 647 N.E.2d 648, 650 (Ind. Ct. App. 1995) (citations omitted).
[ 30 December 2002: Message edited by: matt1978 ]
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On the assumption that you're still in Texas, I did a little research for you. The following cases could help you make your case very strongly, you may wish to print this out and take it with you, and cite them to the judge.
There is indeed an implied warranty of habitability in Texas. It's codified (written into law) at Texas Property Code Sections 92.001-92.061.
The leading (most important) case in this area is Kamarath v. Bennett (Sup. 1978 ) 568 S.W.2d 658. It's a Texas Supreme Court case that established the implied warranty of habitability. It came out before the above law was written, so if the law says anything different it overrides the case; however, the case is still important. Here are some rules that were established by that case:
"In a rental of a dwelling unit, whether for a specified time or at will, there is an implied warranty of habitability by lessor that apartment is habitable and fit for living; this means that at inception of rental lease there are no latent defects in facilities that are vital to use of premises for residential purposes and that these essential facilities will remain in a condition which makes property livable."
"Nature of deficiency, its effect on habitability, length of time for which it persisted, age of structure, amount of rent, area in which premises are located, whether lessee waived defects, and whether defects resulted from malicious, abnormal, or unusual use by lessee, are among factors to be considered in deciding if there has been a breach of warranty of habitability."
(IMPORTANT) "In order to constitute a breach of implied warranty of habitability, defect must be of nature which will render premises unsafe, or unsanitary, or otherwise unfit for living therein."
So basically, you want to argue that the conditions of the apartment you rented (roaches, crackheads, etc.) rendered the premises unsafe, unsanitary, and unfit for living. Those are the "magic words" so to speak.
ALSO, there is another Texas Supreme Court case which is directly on point. It is Davidow v. Inwood North Professional Group--Phase I, 747 S.W.2d 373, Tex.,1988. Here's the rule it lays out, which is in your favor:
(IMPORTANT)"Landlord impliedly warrants that premises are habitable and fit for living; tenant's obligation to pay rent is dependent upon landlord's performance under his warranty of habitability."
So in SUMMARY, you want to tell the judge that:
1)The roaches, crackheads, etc. (be specific and bring proof if possible) made the unit unsafe, unsanitary and unfit for living;
2)That the landlord therefore violated the implied warranty of habitability under Texas Property Code Sections 92.001-92.061, and Kamarath v. Bennett;
3)And hence that, under Davidow v. Inwood, your obligation to pay rent was nonexistent once the landlord violated that warranty.
If you have any proof of the conditions, that will also help your case. Your case will also be greatly strengthened if you ever wrote a letter or notified the landlord of these conditions, or if you can show that the landlord already knew or, at the very least, should have known about them.
It's going to be harder for you to argue constructive eviction, it requires you to show that the landlord intended to evict you, and took some action to do so, basically; but it won't hurt you to make both arguments, so if you get the chance:
Quitta v. Fossati, 808 S.W.2d 63, Tex.App.Corpus.Christi,1991: "Elements of constructive eviction, which will relieve tenant of obligation to pay rent, are an intention on the part of the landlord that the tenant no longer enjoy the premises, material act by the landlord that substantially interferes with the use and enjoyment of the premises for the purposes for which they are let, act which permanently deprives the tenant of the use and enjoyment of the premises, and the tenant's abandonment of the premises within a reasonable time after the commission of the act."
Print all this stuff out and bring it with you, along with any evidence you have or letters you wrote to the landlord. If you make your argument intelligently, and cite these cases/laws, and if you get the right judge, you may just win. Note the numbers/abbreviations after the case names I've listed above, they'll help the court find the cases if they have to.
Good luck, and let us know how it turns out.
OH, and READ THE DISCLAIMER BELOW:
[ 30 December 2002: Message edited by: Mahan Atma ]
 
Here's more general info on the topic:
http://www.texastenant.org/tenant2.html#anchor744651
Note that you have the right to demand a jury trial! It costs $5 to file the form, and you have to do so within 5 business days of receiving the initial papers, so maybe it's too late. But if not, that would be very nice for you, because the jury decides questions of both fact AND law. That would also cost the other side more money to deal with, since the LL's attorney is probably getting paid by the hour. Note that if you lose though, he can demand attorney's fees.
[ 30 December 2002: Message edited by: Mahan Atma ]
 
Additionally, there is a concept of law called "constructive eviction". If the place were deemed uninhabitable to a reasonable persons standards you can inform the owner of the problems and if he/she does not fix them, you can legally and successfully get out of the lease. It its rare but it does happen.
 
But slum lords often try to cover themselves in their written lease. You may have signed that you inspected the place and found everything to be in great shape. Also, there may be requirements related to how to deal with an uninhabitable place that do not include simply breaking the lease and moving out.
~psychoblast~
 
Originally posted by psychoblast:
But slum lords often try to cover themselves in their written lease. You may have signed that you inspected the place and found everything to be in great shape. Also, there may be requirements related to how to deal with an uninhabitable place that do not include simply breaking the lease and moving out.
Somewhere in the case law I looked at, there was a case dealing with whether a waiver of the warranty of habitability would be valid. If I remember correctly, the case said it might, but it was a commercial lease. There can be a big difference between how some courts treat commercial and residential leases. Unfortunately, there was not a great deal of case law dealing with residential leases, most of it was commercial.
Yes there may some regulations, unfortunately I didn't have time to research them all. I was just trying to give the person some decent ammunition. If I remember correctly, Davidow was a case where the tenant more or less moved out w/o any strings attached.
You're right though, I should have told the person to double-check their lease for such clauses.
[ 04 January 2003: Message edited by: Mahan Atma ]
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