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Palo Alto Weekly

Real Estate - February 22, 2013


Isn't it too late for a lawsuit?

edited by Martin Eichner

Q I moved out of an apartment more than three years ago. I knew that I didn't leave the place in perfect condition, but I figured I would call it "even" if my landlord kept my security deposit. Instead, I received a letter from him telling me that he was keeping my security deposit and that I owed him another $800 for additional damage to the property.

I thought that claim was totally unfair so I didn't respond. Now, three year later, that landlord has served me with a small-claims court lawsuit for $1,000 in damages. Isn't this lawsuit too late?

A In order to give you accurate advice, some questions need to be answered. First, was your rental agreement with this landlord in writing or was it oral? The statute of limitations to enforce the terms of a written agreement is four years, which means this lawsuit is still timely if you had a written agreement. On the other hand, a claim based on an oral agreement must be brought within two years.

Another question is whether the original letter from your landlord was timely. California Civil Code Section 19505.5 requires a landlord to provide a written accounting of a tenant's security deposit to the tenant within 21 days after the tenant vacates. Did your former landlord meet this requirement? If not, you have a strong argument that the entire deposit should be refunded. If the judge feels that landlord's delay was in bad faith, there is an additional penalty that you could claim equal to twice the deposit amount, in addition to refund of the deposit itself.

Did the landlord's letter include documentation of the amount of damages claimed? Under Section 1950.5, any deductions for repairs or damages or cleaning that total more than $125 must be accompanied by receipts or invoices supporting them. In addition to these issues, you also have the right to attack whether the claimed damages were reasonable, since you felt there was no significant damage to the property when you left. In this type of case, the landlord has the burden of proving that the damages were justified. If you have any photos or other documentation of the conditions when you left, your case will be stronger.

Depending on the answers to these questions, your local mediation program might be able to help you negotiate a compromise settlement of these claims. There is no "open-and-shut" case in the small-claims court because the procedure is informal and the parties represent themselves. Both sides have an incentive to settle prior to the court date to save the time and stress of a trial. In addition, the party winning at trial will have to collect the judgment awarded, which can often prove more difficult than winning the case at trial.

Q I recently stopped at a rental property to apply for a two-bedroom apartment after I saw a "vacancy" sign while driving past it. I had my two young children with me at the time. When I spoke to the on-site rental agent, she told me that the available unit was on the second floor. She said I could not apply for that unit because they did not rent second-floor units to families with young children.

She said the owner had nothing against children, but the units have open balconies. The owner felt there was too much danger that small children would be injured falling off the balconies. I am finding it hard to find a decent rental and I thought this community would be perfect for me and my family. Is it legal for the owner to exclude me from the second floor?

A Families with one or more children under age 18 living in the household are protected from discrimination under the fair-housing laws. This "familial status" discrimination applies to refusals to rent or sell to families with children. It also prohibits treating families with children differently than other residents in the terms and conditions of housing.

Limiting these families to certain parts of a rental community, or certain floors in a building, are included in the prohibited discriminatory practices. Here it sounds like the landlord was concerned that the open balconies on the second floor would constitute a safety risk for your children. However, that justification does not permit violation of the familial status protections.

Landlords can establish reasonable safety rules that apply to everyone, but safety rules cannot apply only to children. In this case, if the landlord is concerned that the open balconies are a safety risk, the landlord could address the risk by taking some action or making some modification that would be likely to mitigate the risk.

Excluding children instead of addressing the risk may seem more economical to a landlord, but the result is that families like your family find themselves excluded from significant portions of the housing market.

Martin Eichner edits RentWatch for Project Sentinel, an organization that provides landlord tenant dispute resolution and fair housing services in Northern California, including rental-housing mediation programs in Palo Alto, Los Altos and Mountain View. Call 650-856-4062 for dispute resolution or 650-321-6291 for fair housing or email


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