Moving Out Early - Advice Needed

[JDA302]

Hello,

I'm glad I found this site. There seems to be a lot of knowledge here so I'm hoping I can get some good advice so here goes my long winded story:

This is regarding the State of WI if it matters. Sorry if it's in the wrong place.

We are renting a residence on 1 acre of land with outbuildings. The lease began Oct. 1, 2005 and is slated to terminate September 30, 2006. The monthly rent is $950 and upon execution of the lease, they took an additional $950 as security. Our lease clearly has a paragraph entitling us to "Quiet Enjoyment" of the entire premises. Well so far this hasn't been the case. The landlords manage several property and are treating this place as theor personal playground. Since virtually day one, they come and go all hours of the day and night. There is a pole barn that is on the back of the property that they use for personal storage. When they come in to work on their cars, vacuum their cars, fix ATV's, etc. they use the lights and electricity in the oubuillding which is run off the box inside out house. (I have photos of them doing these things) Then when they "re-applicnced" some of their other properties, they dumped the old appliances here and left them all winter. (I have photos of these too) They have also used the land to rip around on their 4 wheelers, disturbing both us AND the neighbors (who are also getting thoroughly annoyed) and I've even caught them doing this on film as well. None of this was part of our lease. I've made casual mention that it isn't very considerate but it's fallen on deaf ears.

As if this wasn't bad enough... the plot thickens.

Back in March/April/May, we experienced a few periods of steady rainfall and every week or so when it rained, the basement would flood. As a result, I'd be down there after work with me shop vac sucking up 20+ gallons of water each time, a task that took hours at times. We had personal belongings stored down there but thankfully when we moved in, there were pallets in the basement and we put out things on there. As a result of the last few wooden stairs being underwater, they are turning black which I can only assume is mold. I wrote a letter in April informing the landlord of this issue. I sent it Certified
Mail. Got the receipt a few days later and then a few days after that, a phone call from my landlord. He assured me someone would be out to look at it and it would be fixed ASAP. Well nobody came out, because if they did, I'd imagine they'd need to see the basement and nobody ever asked for permission to enter, and here we are 2 months later and the problem still hasn't been addressed and it's flooded 2 or 3 more times since I wrote the letter.

Also, I had to plow the driveway all winter and cut the grass thus far this spring because nobody from the landlord's crew seemed too eager to come out and address these needs. The lease doesn't state one way or the other whose responsibility these items were but I figured I'd toss it in here.

Well since all this has happened, we began the process of finding our own home to buy. We found one and are closing in a few weeks. On May 31, I mailed another certified letter letting them know that we intended to be fully vacated and have the place cleaned within 60 days, so basically July 31st. This is 2 months early according to our lease.

Based on advice I've received from a friend, my intention was this:

Be vacated and clean the place. When we are finished, take more photos and even perhaps a video of the condition we are leaving the property.

Write them another certified mailing on July 31st, sending them the keys, a forwarding address, and a letter asking for the return of my security deposit which in this state they have 21 days to return after I surrender the premises.

I do not intend to pay for the remaining 2 months (Aug and Sept) based on the things mentioned above. I feel we've been deprived of one or all of the following:

- Implied Warranty of Habitability
- Covenant of Quiet Enjoyment
- Constructive Eviction

I have done some background checking on these folks and it seems that a majority of them and their tenants end up in court. I'm assuming that they are going to come after me for the 2 months rent I don't intend to pay.

So here are my questions:

In general, do you think I have a decent chance of winning if and presumably when this ends up in small claims court?

Is there anything else I should be doing to cover my bases? I think I have taken some decent precautions to defend myself but more minds are better than one.

Am I correctly informed in assuming that if they withhold my security deposit and I do end up winning that I can counter for double damages as a result of them wrongfully withholding it?

Thanks in advance for any advice and/or feedback!

<small>[ June 08, 2006, 11:19 AM: Message edited by: JDA302 ]</small>

[Downtown]

You signed a lease which is a binding contract.
Frankly, nothing described would warrant constructive eviction...as the house is still livable. [Is the washer/dryer in basement and can't be used...this would be rebate for services lost. Did lease state, sole use of property...rebate. Stolen electricity...illegal and collectable.]
Unless LL agrees to breaking (in WRITING)...nothing you have described is grounds to terminate early. In most states you can postpone closing (30 days). Would mitigate some loss.

[JDA302]

I guess I can see some your points but am having trouble with some of it.

If I'm not being granted sole use of the premises I'm paying for, how does one put a dollar value on a "rebate" I'm entitled to. If I am paying for the use and priveledge of entire premises, which my lease clearly states (except for one outbuilding), and am being inconvenienced by having to clean up a flooding basement every time it rains (which they've known about and have ignored for over 60 days now). What if I was some elderly handicapped person who physically couldn't clean it up? Not to mention having to deal with the landlord and his buddies hanging out, drinking beer, and tearing up the yard on noisy 4 wheelers when we're home. Aren't they in direct violation of my rights of privacy and convenant of quiet enjoyment? Nowhere in my lease does it state that they can just come and go as they please, store vehicles, trailers, broken appliances and other eyesores on the property I'm paying for.

I'm a little skeptical to get serious until after our personal effects are removed from the premises because after doing some investigative searches of public record, the landlord has several priors including battery and felony breaking/entering.

I spoke with an attorney last night and briefed him on the information as well as the photos I have of these violations and he seems to think we'll have no problem being absolved of this lease on at least one violation, possible several bacause they've already violated it in more ways than one. Guess we'll let the judge decide.

[HardKnocks]

I'm with the OP. If you rent a place, the LL does not have the right to use it as he pleases while you live there. Imagine if your LL came in and stored all his crap in your closets?

Nor does he have the right to use the electricity you pay for.

[Emeraldstar]

I agree there has been a breach of the lease. Also check your states utility co. in N.Y. if someone has "tapped onto" your electric that is theft. If proved Con Ed here will assist tenants to recoup resources. Check to see if you can place a $ value on your time/tools spent deflooding basmt. It is the ll who should have done that unless your lease states otherwise. The same goes for the grass labor. Research small claims court in your area. Good Luck

[Downtown]

Hopefully, WI law and/or lease allows you to recoup atty. fees.
Certainly a good local tenant atty. (whom I assume you have checked out as thoroughly), knows what will stick in court. Keep in mind that there are attys. that promise success (so check out his/her record) and don't deliver.
In your letter of termination is it noted the reasons (trespassing, water, etc.), dates and whom complained to. A journal, letters make strong evidence.
LL will probably not return deposit (claiming rent owed). LL could also sue for remaining month.
If you sue in Small Claims for deposit, is your evidence strong enough to support constructive eviction. [Would it be better to use deposit as last month's rent and defend a rent claim...ask atty.]