Nonrefundable rental deposits stir debate

Q: We listed our rental on craigslist, which listed key terms, including a provision that the pet and cleaning deposits were nonrefundable. A couple contacted us and visited the rental, and we agreed orally, (and) with a handshake, to lease to them. It was clear to everyone that the deal was premised on the terms described in the craigslist ad.

Now our tenants are leaving, and they claim that the pet and cleaning deposits should be refundable. The ad is archived, it cannot be edited, and it plainly says they are not. If we do not return these deposits and our ex-tenants take us to court, will we win based on the clarity of the ad? --Charles and Angie G.

A: No lawyer in her right mind would predict a win for someone who's headed off to court. No matter how much the law and the facts appear to be in someone's favor, it's impossible to predict the outcome. A lot depends on how the case is presented and, of course, the sensibilities of the judge. That's why the most common answer to questions like yours is, "It depends."

So, on what does the answer depend? When you base a landlord-tenant relationship on an oral lease, the key terms are whatever the two of you agreed to. The trouble is, if you have differing memories, the case boils down to "he says" vs. "she says." When that happens, judges look for other evidence of the deal.

For example, if you own 20 rental units and all of them have written leases that include this provision, that's some indication that, more likely than not, you explained the nonrefundable issues to these tenants, too.

Ads are also useful; they at least show what you intended when you listed the rental. And therein lies the rub.

The ad by itself doesn't prove what you ultimately agreed to, because as we all know, landlords and tenants often vary the terms that were outlined in the ad. For instance, an applicant who has excellent credit and rental history may be able to convince a landlord to lower the security deposit. It would be preposterous for that tenant to demand the return of the advertised deposit, and to bring in the ad as proof of his claim.

Similarly, tenants with dogs often respond to ads that specify no pets, confident that once the landlord meets their beautiful, well-behaved and college-educated mutt, the landlord will relent (it sometimes actually works). If these folks don't sign a lease, and the landlord later tries to evict because of the pet, the ad will not defeat the tenants' stronger evidence -- that they've lived in the rental with the dog for some time without the landlord's objections, which indicates that the oral lease did in fact permit pets. ...CONTINUED

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