QUESTION
On a condo lease, the owner screwed up the wire info and the security deposit was sent to the wrong account (her former tenant). Who's responsible?
Asked on Jun 17th, 2015 on Real Estate - California
More details to this question:
I'm leasing a condo and was given wire instructions from my agent for the security deposit and pro-rated rent. I wired the money, only to get an email with "updated" wire instructions. I informed him that I already wired the money. It turns out that either the owner or the listing agent gave my agent erroneous wire instructions (the account info was that of the former tenant, i'm guessing they were going to wire back his security deposit but mixed it up somehow). I called the bank the same day to have it cancelled but it was too late. So now the bank is trying to recall the funds but need 2-3 business days. Move in date is in 2 days. If the money can't be recalled and the tenant decides to try and keep it, who's on the hook for that money? Could you make the argument that I followed their instructions and thus am off the hook and it's the owner's problem?
1 ANSWER
You paid the deposit and first partial-month's rent exactly as the owner instructed you to. So you are legally entitled to a credit by the owner. The owner is responsible for his agent's mistakes. So it doesn't matter which of them made the mistake. The owner and his agent need to get the money back from the former tenant.
What are you going to do if the owner refuses to give you the keys and let you move in?
You can offer that you will contact the former tenant and even sue the former tenant, if the landlord or his agent will provide you with the former tenant's new contact information. If you don't have the cash to pay the deposit and first partial-month's rent, tell them. As long as you pay the rent when due and promise to turn over the deposit and first partial-month's rent when you get it, that would seem the fair thing to do.
If the owner refuses to let you move in, if the rent for the substitute premises you rent is more expensive, then the owner will be liable to you for the difference for the duration of the condo lease. You can sue the owner for that difference plus the money that went to his former tenant, plus your filing fee and the fee of the registered process server who delivers the lawsuit to the defendant. If the difference plus the money paid to the former tenant is $10,000.00 or less, you can sue in small claims court.
Does your lease have an attorneys fees clause? If so, a tenant's rights attorney might be willing to sue the owner for specific performance of the condo lease and agree to collect his fee from the owner when he wins. There are attorneys on the internet and in the old-fashioned Yellow Pages who advertise that they represent tenants.
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Dana Sack
Answered on Jun 18th, 2015 at 4:18 PM