Re: Oral rental agreement

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On 10/20/07, Linda wrote:

Here is some research I did on your problem which should not
be considered legal advice. You should consult a local
attorney and not trust anything you read on a "student
discussion board" such as this one.

There is a legal doctrine followed in all common law
jurisdictions (like Colorado) called the "Statute of Frauds."
In Colorado the applicable statute is Colo. Rev. Stat. § 38-
10-108 (2004). It declares that:

"Every contract for the leasing for
a longer period than one year or for
the sale of any lands or any interest
in lands is void unless the contract
or some note or memorandum thereof
expressing the consideration is in
writing and subscribed by the party
by whom the lease or sale is to be made."

The phrase "any interest in lands" will include an agreement
to rent or sublet real property (like an apartment or house)
for longer than 1 year. According to the statute above, if
you do not have a written contract for the agreement to
sublet part of the apartment or house you had a master lease
on; you can not enforce any terms of the oral agreement in
court if your agreement was for longer than 1 year. The
lease you made to your roomate is voiadable at his option if
it was for over 1 year in duration.

> I had an oral agreement with a roommate stipulating that
> he stay until the end of the lease period. I collected
> last month's rent and a damage deposit, explaining that he
> could move sooner and receive deposits back ONLY if he
> gave 30 days notice AND replaced himself with a suitable
> tenant with no gap between roommates. I agreed to prorate
> back a partial deposit if it took longer than 30 days to
> find a replacement. He agreed to all of these terms. He
> later moved out with no notice, and agreed to the loss of
> the last month's rent, but is suing me in small claims for
> the damage deposit. According to unofficial inet advice on
> Colorado rental laws(sites mostly designed to sell lease
> agreements), the tenant is required to give written notice
> of vacating the premesis a minimum of ten days before
> leaving(that's assuming only a month-to-month agreement,
> whereas we had a lease by oral agreement), and the tenant
> is required to give the landlord (I'm just the lease
> holder, not the landlord) written notice indicating intent
> to file a suit a minimum of seven days before filing,
> neither of which he did. It is also the burden of the
> landlord to prove that retaining a deposit is justified,
> and to notify the tenant of the reasons, which I did not
> do. By law, I have between 30- 60 days after the end of
> our lease period to do so. I am past the 30 days, but
> ahead of the 60 days, and the details of the deadline are
> not clear to me. The statute below indicates that I lose
> all legal grounds for keeping the deposit if I exceed the
> deadline, but is that even applicable if the lease is not
> in writing? I do have records indicating cost of
> advertising for a new roommate and outstanding utility
> bills. I have only the word of my current roommate that
> there was a gap between roommates(and thus cost of
> additional 3 days' rent). I considered the remainder of
> the deposit forfeited since he gave no notice. I'm
> concerned that if I go to court and lose, I will have to
> pay his filing costs and possibly his attorney's fees, and
> have heard that losing will damage my credit even if I pay
> in full immediately.
> My main 2 questions are: what law is applicable in the
> absence of a written agreement; will I be treated as the
> landlord by law, although I am merely subletting a room?
> The following is the most official looking info I was
> able to find online; please see excerpt below:
> http://www.tenant.net/Other_Areas/Colorado/crs/103.html
> Colorado Statutes – Article 12 –
> Tenant and Landlord
> Return to Title 38 index.
> -----------------------------------------------------------
> ---------------------
> 38-12-103. Return of security deposit.
>
> (1) A landlord shall, within one month after the
> termination of a lease or surrender and acceptance of the
> premises, whichever occurs last, return to the tenant the
> full security deposit deposited with the landlord by the
> tenant, unless the lease agreement specifies a longer
> period of time, but not to exceed sixty days. No security
> deposit shall be retained to cover normal wear and tear.
> In the event that actual cause exists for retaining any
> portion of the security deposit, the landlord shall
> provide the tenant with a written statement listing the
> exact reasons for the retention of any portion of the
> security deposit. When the statement is delivered, it
> shall be accompanied by payment of the difference between
> any sum deposited and the amount retained. The landlord is
> deemed to have complied with this section by mailing said
> statement and any payment required to the last known
> address of the tenant. Nothing in this section shall
> preclude the landlord from retaining the security deposit
> for nonpayment of rent, abandonment of the premises, or
> nonpayment of utility charges, repair work, or cleaning
> contracted for by the tenant.
>
> (2) The failure of a landlord to provide a written
> statement within the required time specified in subsection
> (1) of this section shall work a forfeiture of all his
> rights to withhold any portion of the security deposit
> under this section.
>
> (3) (a) The willful retention of a security deposit in
> violation of this section shall render a landlord liable
> for treble the amount of that portion of the security
> deposit wrongfully withheld from the tenant, together with
> reasonable attorneys' fees and court costs; except that
> the tenant has the obligation to give notice to the
> landlord of his intention to file legal proceedings a
> minimum of seven days prior to filing said action.
>
> (b) In any court action brought by a tenant under this
> section, the landlord shall bear the burden of proving
> that his withholding of the security deposit or any
> portion of it was not wrongful.
>
> There is more information on the site if needed. Thank you
> for taking time to consider my situation.
>
>