Can tenant legally rescind 30-day notice to vacate?

Inability to find replacement rental presents dilemma

Question: I live in an apartment on a month-to-month rental agreement and plan to move to another apartment if I find a better deal elsewhere. My question is about the 30-day notice to vacate. If I give my notice but don’t find another apartment, would it be possible to legally withdraw my notice? My friend says that it can be done as long as it is at least a few days before the 30 days are over. In other words, the apartment management cannot force me to move if I change my mind. Please let me know your opinion.

Property Manager Griswold replies:

Your friend is wrong! The notice is binding and any holdover beyond the expiration date could make you liable for damages incurred by the landlord or a new incoming tenant if you continue to occupy the rental unit. The landlord can voluntarily agree to let you take back the notice, but would typically only do so if they either had not yet rented your rental unit, or could reach an agreement with the incoming tenant to accept an alternative rental unit. I wouldn’t count on the cooperation of the landlord or a potential incoming tenant merely because you have changed your mind. If you refuse to leave, you could find yourself liable to an incoming tenant for his or her costs and damages of not being able to move in as planned. I suggest you only give your 30-day notice to terminate your tenancy when you are sure that you are moving and know exactly when.

Question: I recently rented a house that was advertised as a five-bedroom house. After I signed a year lease, I was told that the house has four bedrooms and a bonus room, which is being used as the master bedroom. When I moved in, I realized that the bonus room, which has closets, and an attached bathroom, is open to the living room. When we originally viewed the house, this area, which is on the second floor, was closed off with ceiling-to-floor blinds, and it just looked like a regular room to me. The landlady now says that she will enclose the space; however, she expects the job to take about eight to 10 days. I am uncomfortable with this, as we need that room to live in, and I have two small babies in the house, and don’t want to be living with construction. Can I break this lease without penalty?

Tenants’ attorney Kellman replies:

There are several ways to break a residential lease. One of the grounds is if you were induced to enter into the contract based on a significant misrepresentation as to the rental unit. In your case, it is clear that you were the victim of misrepresentation and that the house was indeed very different than as presented due to the intentional concealment of the true character of the house. The landlord advertised a five-bedroom house when it actually has only four bedrooms. Further, the true character and nature of the house were intentionally concealed from you. Based on your situation, it seems reasonable that you can declare the contract rescinded (i.e. broken) without a penalty. In fact, you may even make a claim for damages suffered by the misrepresentation. You will need to document that position correctly and return possession of the house to the landlord as soon as possible. There are other ways to break leases besides the method and grounds discussed above. Before declaring any lease broken, you should seek legal advice since if you do not properly protect your rights with breaking leases, you may be held liable for the rent for the balance of the lease term.

Question: I was renting a condo from a woman who lives in another state. Each month I mailed the rent check to her home address. She decided to sell the property recently, so I moved out of the condo. It has been over three months now and I still have not received my refund check or an accounting indicating any reason why she was not giving it back. The landlord has since sold the property and I know that she still lives in the same place. What is the best way to get my rent deposit back?

Property Manager Griswold replies:

I suggest you immediately send a written demand letter to the owner and require a response within 10 business days. If you do not receive a satisfactory reply then you should utilize the small claims court. Check with the process service requirements of your local court, but typically the small claims court can either serve her by mail or you may have to arrange with a local process server that has connections in her home state to get your lawsuit served. That is probably your biggest hurdle, but should not be a major problem since you have her home address. The owner would need to appear in person or send a representative. Of course, you may find that the owner is a no-show and then you have a judgment that is difficult to collect. In that case, I would recommend you turn the matter over to an aggressive national collection agency and see what they can do.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and Ted Smith, principal in a firm representing landlords.’

E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

Questions should be brief and cannot be answered individually.

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