Z-Man Properties, LLC v. Florence Garrity

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR KENT COUNTY
Z-MAN PROPERTIES, LLC
)
)
Plaintiff, )
)
v. ) C.A. No.: CPUS-IB-OOOGOI
)
FLORENCE GARRITY, )
)
Defendaiit. )
)
Patrick Scanlon, Esq. Ms. Florenee Garrity
203 NE Front Street, Suite 101 6236 Mud Mill Road
Milford, DE 19963 Cainden~wyorning, DE l9934
Attorney for Plaintiff P)'o Se Defendant
Subznitted: January 3 l , 2014
Decided: March 7, 2014
I)ECISION AFTER TRIAL
T his case involves a debt action filed by a landlord against a tenant Plaintiff, Z-Man
Properties, LLC, is seeking recovery from Defendant, Florenee Garrity, for back rent and
damage to its rental unit. The defendant contends that she does not owe the plaintiff any back
rent and that she is not liable for the damage done to the rental unit because the unit was
vandalized. The Court heard the trial for this matter and reserved decision. After considering
the evidence introduced at trial, the Court finds for the plaintiff and enters judgment against the
defendant for $2,508.52 in darnages, plus post judgment interest at the legal rate, and court costs.
FACTS
The plaintiff entered into a one-year residential lease agreement for a town home with the
defendant. The term of the lease ran from June l, 2011, until May 31, 2012, with a monthly rent
amount of $I,OS0.00, and a security deposit of $500.00. Pursuant to the rental agreement, when
the lease expired on May 31, 2012, the agreement continued as a month to month tenancy at the
market rate.' The defendant and a representative for the plaintiff are the only signatories to the
rental agreement. The defendant is the only tenant named on the rental agreement The parties
also entered into a pet agreement whereby the defendant was permitted by the plaintiff to have
two lab dogs at the residence. The agreement stated that the defendant accepted "fuli
responsibility for the entire cost of any damage or injury to persons or property" caused by a pet.
The defendant and a representative for the plaintiff are the only signatories to the pet agreement.
Before trial, the parties stipulated to the following The defendant rented the town horne
from the plaintiff for her son, J ames Cox. The defendant originally resided in the rental unit, but
had since moved out. Mr. Cox occupied the property for the last few months of the lease. The
defendant paid rent for the month of June 2012 at the fair market value of $1,200.00. The
defendant did not pay rent for the month of Jufy 2012. The defendant did not return the keys for
the rental unit to the plaintiff
l Paragraph 2 of the lease agreement provided that upon expiration of the lease terrn, "the
Agreement will continue on a month to month basis [sic], at Market Rent, or Tenant may renew
for additional one (l) year at Market rent, unless automatically terminated . . . ." Pl.’s Ex. 3 at I.
Based on the evidence introduced at trial, along with the reasonable inferences resulting
therefrom, the couit finds the relevant facts to be as follows.
On or about june 2, 2012, Mr. Cox went to the plaintiffs leasing office and attempted to
renew the defendant’s lease for a second one-year tenn An employee for the plaintiff notified
Mr. Cox that he could not renew the lease because he was not a named tenant on the rental
agreement lt is at this time that Mr. Cox gave the plaintiff oral notice that he would be vacating
the town home; however, he never gave an exact date. Mr. Cox paid the rent owed for June 2012
- with a check 'l`` he defendant did not renew the lease.
On or about June 28, 2012, Mr. Cox moved out of the town home; however, certain bulky
"trash" items and some personal papers were left in the unit. Mr. Cox did not have room led to
pack the bulky trash items in his vehicle on June 28, 2012, and he did not dispose of the items in
the communal dumpster because it was raining and the dumpster was full. The plaintiff had no
indication that Mr. Cox had moved out of the town home on June 28, 2012, because Mr. Cox
never retumed possession of the four keysz to the rental unit and his motorcycle remained parked
in the space designated for the town home throughout the month of J u1y.
At some point in mid July, the plaintiff was informed that the defendant was vacating the
town home, but the defendant never retumed the keys to the unit. On or about July 20, 2012, the
plaintiff s property manager conducted a routine inspection_of the unit. During her inspection,
the property manager discovered the trash items left by Mr. Cox and noted that there appeared to
be dog feces in the carpet of the unit. No other damage was noted at this time. On or about July
23, 2012, the property manager called the defendant to inquire if she had finished moving and to
2 At trial the property manager testified that it was the plaintiff s standard procedure to have four
keys made for each unit. At least one key for each unit was to remain in the plaintiffs
possession; however, at some point Mr. Cox retained possession of all four keys belonging to the
unit.
inform her that a charge against her security deposit would be made for the removal of the items
left in the unit unless the defendant removed them. The defendant told the property manager that
she would speak to Mr. Cox about removing the remaining items.
On or about July 24, 2012, Mr. Cox went back to the unit with a friend to remove the
remaining trash iterns. Upon arrival, Mr. Cox testified that he found the front door to the unit
unlocked and extensive damage to the interior of the unit. Mr. Cox exited the unit and notified
the property manager and the police. Once the police officer arrived, Mr. Cox, the property
manager, and the officer conducted a walk-through of the rental unit. The unit was substantially
damaged. In addition to the dog feces observed by the property manager on her earlier
inspection, other damage included punctures and holes in several walls, closet doors ripped off
the hinges, trim'ripped off of the wall, a broken banister, a``cut screen door, and items of trash
strewn around the unit.
Mr. Cox testified that during the walk~through with the property manager and the police
officer, he and his friend were able to pull open the sliding glass door while the lock was still
engaged. At trial, the property manager denied observing this happen. Howevcr, she stated that
Mr. Cox did inform her the day of the vandalism about the sliding glass door. The maintenance
supervisor later reported to her that he did not find a problem with the door. The property
manager informed the police that she believed Mr. Cox destroyed the unit. Altematively, Mr.
Cox contends that the damage was done by vandals. The trash items were never removed from
the unit.
DISCUSSION
I. Abandonment
Title 25, section 5106 of the Delaware Code states that "[w]here the term of the rental
agreement is month-to-month, the landlord or tenant may terminate the rental agreement by
4
giving the other party a minimum of 60 days’ written notice, which 60~day period shall begin on
the first day of the month following the day of actual notice." DEL. CODE ANN. tit 25, § 5106(d).
Abandonment occurs when a tenant "wrongfully quits the rental unit and unequivocally indicates
by words or deeds the tenant’s intention not to resume tenancy." DEL. CODE ANN. tit 25, §
5507(d). "Under Delaware law, a lessor must establish a lessee's intent to abandon the lease~
hold property and an act on the part of the lessee evidencing such intent in order to establish
abandonment." Clz``ne v. Willis, 1988 WL 116419, at *1 (Del. Super. Oct. 11, 1988) (citing Bank
of Delaware v. Claymont Fire C0. No. I, 528 A.2d 1196, 1198 (Del. 1987). Abandonment is a
question of fact. Ia’.
In this case, the defendant had legal possession of the rental unit on July 24, 20l2. At
trial, the defendant agreed that written notice of termination was never given to the plaintiff
lnstead, Mr. Cox gave oral notice of the defendant’s intention to terminate to an employee of the
plaintiff on June 2, 2012. However, both § 5106 and the rental agreement expressly require a
rnonth~to-month tenant to give 60 days written notice to terminate tenancy.3 Therefore, the
termination period did not begin on June 2, 2012, when Mr. Cox gave oral notice because notice
of termination must be in writingl and it cannot be for some future unspecified date.
3 The parties’ rental agreement states "either party may terminate this Lease at the end of the
initial term, or any time prior to the end of the initial term, or successive terms by giving notice
to the other party no less than sixty (60) days prior to termination date." Pl.’s Ex. 3 at 5. In a
prior section, the agreement specifies that notice must be in writing in order to receive a refund
of the security deposit. Pl.’s Ex. 3 at 2.
4 It should also be noted that Mr. Cox had no authority to give the plaintiff notice of termination
of the tenancy because Mr. Cox was not a named tenant on the rental agreement At trial, the
defendant alleged that her son was a co-tenant on the lease. The plaintiff introduced the rental
application signed by both the defendant and Mr. Cox. The rental application identified the
defendant as the "applicant" and Mr. Cox as the "co-applicant." However, the only tenant
identified on the rental agreement is the defendant and only the defendant’s signature appears on
the rental agreement Therefore, while Mr. Cox was permitted to dwell in the rental unit, he was
not considered by the plaintiff to be a tenant, as stated in the parties’ rental agreement See Pl.’s
5
Assuming, arguendo, that the defendant did give proper written notice on June 2, 2012,
both § 5106 and the parties’ rental agreement expressly state that notice must be given at a
minimum of 60 days prior to the date of termination Additionally, § 5106 specifies that the
notice period begins to run on the first day of the month following actual notice. Therefore, if
the defendant gave written notice on June 2, 20l2, the tenancy would not terminate until August
31, 20l2. In either case, it is clear that the defendant had legal possession of and an obligation to
pay rent for the unit through July and August of 2012. Therefore, any evidence that the
defendant vacated the rental unit prior to August 31, 2012, without providing written notice of
the specific date she was moving out of the unit is proof of abandonment
The defendant contends that Mr. Cox had completely moved out of the rental unit on
June 28, 2012, and that the items remaining in the unit were trash. The plaintiffs property
manager testified that she was not informed until late July of 2012 that the defendant was
vacating the property. On July 20, 2012, when the property manager entered the defendant’s
rental unit to inspect the premises, she testified that she believed the unit was still being
occupied. However, the defendant adamantly opposes this assessment, presenting evidence that
Mr. Cox had no intention of returning to the rental unit after June 28, 2012, to remove the trash
items and only did so after the defendant was contacted by the property manager and informed
that the defendant’s security deposit would be charged to remove the remaining items.
’l``herefore, the Court concludes that the defendant abandoned the rental unit on June 28, 2012.
Ex. 3 at 4 (stating “[t]he tenant shall use the premises only as a private dwelling for
himself/herself and the individuals listed on the application The Tenant(s) agrees to permit
other individuals to reside in the unit only after obtaining the prior written approval of the
Landlord."). As a result, the Court does not consider Mr. Cox as a tenant in its analysis.
II. Liabilicy
ln a claim for damages to rental property, the landlord must prove by a preponderance of
the evidence that the damage is attributable to the tenant and is not a result of normal wear and
tear. BRG, LLC v. Brz'nsy‘ield, 2010 WL 1413004, at *2 (Del. Corn. Pl. Mar. 4, 2010); see DEL.
CODE ANN. tit 25, § 5514(0). Pursuant to the Delaware Code, a tenant is obligated to not
"willfully or wantonly destroy, deface, darnage, repair or remove any part of the structure or
rental unit or the faciiities, equipment or appurtenances thereto, nor permit any person on the
premises with the tenant’s permission to do any such thing." DEL. CODE ANN. tit 25, § 5503(6).
Generally, a tenant is not liable for damage to the rental property resulting from "fire or
casualty" if such damage occurs "without fault on the part of the tenant, or a member of the
tenant’s farnily, or another person on the premises with the tenant’s consent." DEL. CODE ANN.
tit 25, § 5309(a). However, “{a]bandoninent of property is an invitation to vandalism . . . ."
RESTATEMENT (SECoND) or PRoP.: LAND. & TEN. § 12.1 cmt. i (1977). “Even though the
damage to the leased property is caused by a third person who is wrongfully on the leased
property, the conduct of such third person may be attributable to the tenant . . . if the tenant’s
conduct encouraged the wrongful invasion of the leased property by the third person."
RESTATEMENT (SECoND) oF PRoP.: LAND. & TEN. § 12.2 cmt. g (1977). According to the
Restatement (Second) of Property:
A tenant who abandons the leased property is in default, whether the landlord terminates
the lease or not. Consequently, in addition to other rights the landlord has against the
tenant, as long as he does not duplicate recoveries, he is entitled to recover from the
tenant the damages he has sustained as a result of the abandonment Daniage due to
vandalism while the leased property is vacant, which occurs before the landlord has had a
reasonable opportunity to take appropriate steps to protect the property against
vandalism, is attributable to the tenant and such damage is recoverable from the tenant . .
RESTATEMENT (SEcoND) or PRoP.: LAND. & TEN. § 12.1 cmt. i (1977).
ln this case, the plaintiff has established by a preponderance of the evidence that the
defendant abandoned the rental unit.$ Therefore, any damage, beyond normal wear and tear,
resulting to the unit by third party vandals is attributable to the defendant.
The Court acknowledges that pursuant to title 25, section 5507(d) of the Delaware Code,
the plaintiff has a duty to mitigate damages when a tenant abandons a rental unit. DEL. CODE
ANN. tit 25, § 5507(d). However, the Court also acknowledges that pursuant to the defendant’s
actions, the plaintiff reasonably believed that Mr. Cox continued to inhabit the rental unit
throughout the month of July. At trial, the plaintiffs property manager testified that she
observed Mr. Cox’s motorcycle parked in the parking spot assigned to the rental unit through the
month of July. The defendant argued that Mr. Cox gave oral notice of his intent to terminate the
lease agreement; however, notice was not provided in writing and the plaintiff had no reason to
believe that the defendant would vacate the unit prior to the 60 day notice period. The property
manager admitted that she received notice that the defendant had moved out of the rental unit at
some point in late Jnly; however, the property manager subsequently inspected the unit and
found items inside leading her to believe the unit was still inhabited. Additionally, neither the
defendant nor Mr. Cox returned possession of the keys to the plaintiff The Court concludes that
the plaintiff had no reason to believe mitigation was necessary at the time the alleged vandalism
occurred.
5 lt should also be noted that even if the Court were to assume, arguendo, that the rental unit had
not been abandoned, the defendant would still be liable for the damages to the rental unit for two
reasons. First, it has been clearly established that the defendant had a legal right to possess the
unit through August 31, 2012. Second, the defendant failed to provide the Court with credible
evidence of forced entry or other evidence to support the defendant’s contention that the rental
unit had been vandalized. In the absence of evidence to the contrary, the Court believes that the
plaintiff has also demonstrated by preponderance that Mr. Cox and/or the defendant are
responsible for the damage to the rental unit.
III. Damages
When a tenant is found to abandon their lease, the Delaware Code states that the landlord
may recover the "entire rent due for the remainder of the term and expenses for actual damages
caused by the tenant (other than normal wear and tear) which are incurred in preparing the rental
unit for a new tenant . . . ." DEL. CODE ANN. tit. 25, § 5507(d). Norrnal wear and tear is defined
as "the deterioration in the condition of a property or premises by the ordinary and reasonable
use of such property or premises." DEL. CODE ANN. tit. 25, § 5 l4l(l 9).
In this case, the plaintiff has requested a long list of damages. At trial, it was established
that several charges requested by the plaintiff were for items not attributable to the defendant’s
rental unit. Additionally, it was established that several of the charges claimed by the plaintiff
were for painting and cleaning, otherwise designated as costs associated with normal wear and
tear on the property. The Court has taken into consideration all the damages claimed by the
plaintiff and finds that it has proven the following damages by a preponderance of the evidence
for which the defendant is liable:
99
Unreturned Keys(’ (4 total) 20.00
Trash Removal $ 175 .00
Carpet Cleaning Beyond Normal Wear and Tear (deep soil $ 255.00
extraction, red stain removal, bleach spots, deodorizer)
Labor to Repair Damages 3 750.00
Replacernent Bi-fold Door, Handrail, Drywall Screws and $ 378.09
Wall Board, Mini Blinds, Toilet Seats (3), and Cabinet
Doors
Shoe Guards and Coverallsl $ 28.43
6 The rental agreement signed by both parties states that "[t]he Landlord may charge the Tenant
$5.00 for each key not returned." Pl.’s Ex. 3 at 3.
7 Proven at trial by the plaintiff as a necessary expense due to the extent of the damage to the
rental unit.
Less: Security DepositCredit (S 500.00)
'I``otal Due for Damages 35 l,lO6.52
sack Rent for July 2012;“ $1,200.00
5% Monthly Rent Late Fee: $ 60.00
Unpaid Utilities $ 142.00
'I``otal Due for Unpaid Rent and Expenses $l,402.00
TO'I``AL DUE $2,508.52
The Court finds that the defendant is liable to the plaintiff for damages, minus the amount
of the security deposit, in the amount of $l,l06.52, plus back rent, late fees, and unpaid utility
expenses in the amount of $l,402.()0, plus post judgment interest at the legal rate and court costs.
C()NCLUSION
As a result of the Court’s finding of fact, which is based upon the entire record, including
all direct and circumstantial evidence, and all references resulting therefrom, and the Court’s
above-referenced conclusions of law, the Court enters judgment for the plaintiff and against the
defendant in the amount of $2,508.52 for damages to the rental unit and unpaid rent and utility
expenses, plus post judgment interest at the legal rate and court costs.
rr rs so onl)nnnb this ;)_‘_"_ day of MARCH, 2014.
@t rt /l/li,@tr
CHARLES w. wallen
ruben
8 The plaintiff only requested back rent for July of 2012; however this does not change the
Court’s analysis regarding the defendant’s potential obligation for rent through August of 2012,
under Delaware law.
l0