Post: Oral rental agreement
Posted by Linda on 10/20/07
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:
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.
Posts on this thread, including this one
- Oral rental agreement, 10/20/07, by Linda.
- Re: Oral rental agreement, 10/21/07, by -.