Another Flatshare nightmare!!

I'm facing a tricky situation with both my ex-landlord and my ex-flatmate regarding recovery of rent deposit and would like to hear your thoughts and opinion on the best way to proceed:


I shared a flat with another guy but the Lease Agreement was on my name. It was due to expiration in January 2010, renewable for another 2 years, and I had plans of moving out around March 2010. I communicated that to the landlord and the flatmate early in November 2009, and the flatmate confirmed to me that he wanted to stay in the flat, and so he would take over the agreement under his name as of March.


I was reluctant to sign a 2-years renewal under my name, knowing that only 3 months later I would be moving out, but I did so, first because I trusted the flatmate's word, and second because then the landlord would not be raising our rent at least until March, which was at $18,000 HKD. So, the 3 of us agreed that when the time came, the landlord would terminate the agreement with me and transfer it to the flatmate. The Lease Agreement allowed termination at any time without penalties provided that I found another flatmate to transfer it to, which was the case then.


By March, I reminded both of them to transfer the lease as previously agreed, and I saw some email exchange between them regarding documentation, which led me to believe that things were settled (in particular because after March, the flatmate was the one collecting my portion of the rent and paying it directly to the landlord). In parallel, things took longer for my move-out and I remained in the flat until May, when I asked my landlord to send me the termination letter. That's when she told me - to my surprise - that the lease transfer had never been made because the flatmate never replied her documentation requests. When I asked him, he just said "i forgot" and, on top of that, "i changed my mind and im also moving out".


It just seemed to me that he was all this time pretending he had the lease transferred, just gaining time to also find another place without, however, having the burden of holding a lease agreement under his name. Acting in bad-faith.


Anyway, I was already going to move out, but with the news that the flatmate was also moving out himself thus not taking over the agreement AND not staying in the flat until he found new tenants, we gave 1-month notice to the landlord and we had to immediately find new people to take over the lease. We then hurried to find new tenants. I moved out in early June, and the flatmate moved out end of June, and the new tenants came only in August/Sept. During July and half of August the flat was vacant and the landlord received no rent.


According to the lease agreement, upon termination the landlord should return the 2-month-advance payment that was held as collateral ($19.5 K) from which 62% is mine ($12K) and 38% was the flatmate's ($7.5K). However she returned only 50% of that amount - $9,750 in total - alleging that we did not made the replacements in due time.


I acted in good-faith during the whole process, acted diligently, communicating my plans in advance for all parties involved and sticking to it. The same doesn't seem to have happened with my counterpart.


In view of the above:


1. Considering I was supposed to get a deposit of $12K, and now I received only $9.750 in total, do you think the flatmate is fairly entitled to his proportional part of the deposit fee (which would leave me with only $6K, from the original 12k) ?

Having in mind that the only reason why we didn't get 100% of our deposit back is because he decided to change his mind at the last minute (as if there were no legal consequences) and left the flat vaccant (and the agreement was already supposed to be in his name by then, in the first place).


2. The lease agreement didn't have any provisions regarding termination, penalty clauses, etc. Under common law (which I'm not familiar with), is the landlord entitled to 50% of the deposit and to proceed as she did?


A few things to consider: if she is to retain the 50% as a "penalty" for early termination of the lease agreement, then the contract is finished and I was not supposed to be legally bound to her any further. However, during that transition period, I practically acted as her "agent", arranging visits and showing the flat to potential tenants. She doesn't even live in HK.


If I do have the grounds, would I have a case to try and recover the other half of the deposit ($9.750K) in the small claims forum - would it be worthy?


Any thoughts or experiences you could share on this matter would be highly appreciated.


Thank you.

I agree with walkup2 - unlikely you have a leg to stand on.

Agree with the above posters. If you look at it from a 3rd party view, it should be the Landlord who does the suing for rent recovery during the absent period. You were very lucky to get some deposit back and this shows good faith on the Landlords part. Keep all of it.

I also agree that your landlord was more than reasonable since she was out 1.5 months of rent (at $18k per) but only kept 1 month's deposit (at $9750 per). But at least the landlord did not have to find new tenants and then pay the agency commission.


I also think your flatmate was pretty scummy for the treatment but you also have to keep in mind you were able to stay longer than your original intention. Keep all of the deposit if it makes you feel better since your friend stiffed you in the first place.

Yojoe


You're lucky to get any deposit back. In the end, you renewed the lease in your name. It was your responsibility. I would move on and forget about it.

I agree. You're lucky you got anything back.

mbbcat,


bad idea. You need a license to solicit for tennants otherwise it's you who will end up in court.