Q: My friends and I signed a one-year lease on a house. We’d been there for three months before the lady next door got sick of us and complained to the city about everything we did. Our landlord then served us with a “three-day notice to quit” (nuisance).

So that’s exactly what we did — we moved out and surrendered the property. Now he’s telling us we owe him the rent until someone else moves in and that we don’t get out deposit back. Is this legal and if it is or isn’t, what should I do?

Tenant attorney Steven R. Kellman replies: This is an example of what is wrong with legal notices which do not mean what they appear to say.

Your notice stated in what appeared to be clear language that you had three days to either move out and forfeit the lease or be sued for eviction. You chose to move out and forfeit the lease.

Unfortunately, the forfeiture referred to in this notice did not mean that the lease is canceled. It really means you forfeit your rights of possession under the lease and whatever defenses you may have had in that case, but the landlord keeps all theirs.

In other words, moving out only avoided the eviction case but by doing so, you admitted liability for the claim against you and damages including possibly the balance of rent owed on the lease.

This problem also occurs in notices which demand that you pay the rent or move out within three days. It’s the same situation. If you do not pay and simply move, you again forfeit your defenses to the case and admit liability for what is claimed owed.

The allegation of nuisance against you could have been disputed. If the neighbor could not prove significant nuisance behavior against you, you could have won the case and preserved your tenancy. In the future, seek legal advice before taking action on any such legal notice.

Landlord attorney Ted Smith replies: This situation is seen all too often. By signing the lease, you obligated yourself to a one-year commitment — requiring payment of rent and also compliance with all other lease provisions.

By your noise and disturbances, you breached the lease. Under these circumstances, California law states that the landlord can ask you to move.

You have the right to dispute the notice and fight the eviction, claiming that the allegations are not supported by the evidence. If you win the case you will be allowed to stay in possession for the balance of the lease, so long as you continue to comply.

In this case, you elected to honor the notice and vacate the premises. Although you have vacated, the lease is not terminated. The court will allow the landlord to recover rent for the balance of the lease under certain conditions.

To let you off the hook simply by vacating would give you a windfall and render the lease meaningless. The best approach is to either contest the eviction based on the alleged disturbances, or make an agreement with the landlord to break the lease.

This agreement would state that you would move out and pay a mutually agreed figure to settle up on the lease.

Send questions to Rental Roundtable, 5703 Oberlin Drive, Suite 300 San Diego, CA 92121-1743, or by e-mail to rgriswold@retodayradio.com.

Source:

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/12/03/REGLNMM2S41.DTL