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Q. I recently helped a friend and his elderly mother find an affordable apartment in Houston, Texas. But on the day he moved in, there was trash strewed all over the place, and even a condom in the toilet. He immediately got the management's attention and they promised to clean it right away. They did, but because of the horrible condition, he didn't want to live there and asked for another option. The only other opening was on the third floor, and his mother couldn't go up and down stairs. They initially agreed to let him cancel the contract and refund his money, $793.94, but have since refused. We believe we should get 100% of the money back because we mutually agreed to the cancellation and they stated clearly to us that they were going to refund my friend his money. I've sent them many emails and even a certified letter almost two weeks ago but they won't bother to even reply now. I certainly hope with you can be of help to my friend.
-- Tony Phan
A. I reached out to the apartment building's managers, NRP Management, and was told that they would be refunding your friend's money within a few days – I know that by now you've received it. Unfortunately, they didn't respond to my request for information about why they refused to refund the money in the first place, so I got on the phone with Janet Portman, an attorney and author ofEvery Landlord's Legal Guide from Nolo, to find out how this process generally works.
Portman says that the laws on this vary by state and by lease, but what happened to your friend falls under the landlord's failure to deliver possession of the property. "The landlord might argue that it is delivered, but there's just going to be a slight delay, but if it's not habitable – which is to say not something that a reasonable person could say is a livable place – then it's not considered to be delivered," explains Portman.
At that point, you need to consult your state's laws, and, if they're not clear on this, the lease you signed when you agreed to rent the apartment. Depending what the law says, you may have the right to say that the lease is canceled and you want your money back. A lease, on the other hand, tends to favor the landlord. "Typically what that will say is if the landlord can't deliver possession, the lease won't cancel – instead, it will postpone, and rent will abate. So you're not responsible for the rent at the time you're not living there, but you're still responsible for fulfilling the terms of the lease," says Portman. In general, landlords don't want to give tenants the ability to cancel the lease.
One important thing to note here: You have to understand that there is a big difference between an apartment that is not livable, and a landlord not pulling through on a promise to fix something. In your friend's case, it sounds like the apartment wasn't livable. But if we were talking about a situation in which a landlord had promised to replace carpeting, or paint, it wouldn't fall under the same rules. If you have the promise in writing, you may have legal recourse if he doesn't follow through, but you can't claim that he failed to deliver.
All of this points out the importance of reading your lease – or any legal or financial document – cover to cover, line by line, including the fine print. That way, you know exactly what you're getting into.
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