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by byseeksconseil » Thu, 14 Feb 2013 3:08 pm
Hi,
I am contemplating moving out of my current HDB unit because of noisy neighbors. My agent and I agree that it is not the landlord's fault that the noise problem exists (and persists). I am 4 months into my 12-month lease. At this moment, I am thinking of moving out because it seems that all avenues to solve the noise problem have been exhausted.
The landlord's agent says that if I break the lease, I will have my deposit forfeited, as well as reimburse the landlord a pro-rated amount of the agent fee that she paid her agent.
At the same time, they have outright refused my offer to help find potential replacement tenants to take over the lease.
The position that I am going to take in the Small Claims Court is this: I am willing to reimburse the commission fees, but I am entitled to get my deposit back, for the following 3 reasons:
1. The only paragraph that explicitly spells out the consequence of the Tenant breaking the lease only talks about the Tenant having to reimburse the Landlord for the prorated commission fees.
2. The lease does not otherwise make any explicit reference to forfeiture of the security deposit in the event of the Tenant breaking the lease.
3. Most importantly, the Landlord has refused my offer to help find a replacement tenant. In other words, she is not allowing me help her mitigate any possible loss in this process. Therefore, she cannot then later claim compensation from me for the loss that she would otherwise have avoided.
Details are below (A, B, C corresponding to 1, 2 and 3 above):
A. First of all, let's see that the lease says. The only paragraph in the lease that spells out the consequence of the Tenant breaking the lease is this one:
"If the Tenant should terminate this agreement before the expiry of the term herein for whatsoever reason then the Tenant shall in any event reimburse the Landlord on a pro rata basis the commission the Landlord has paid to XXX for the remaining unfulfilled term and the Landlord shall be entitled to deduct such refund from the deposit held by the Landlord and shall not claim any commission refund from XXX. "
Obviously the rationale for this paragraph is to cover the additional agent fees that the Landlord will have to incur for finding the next tenant.
B. Other than this paragraph, the lease does not otherwise explicitly state the consequence for the Tenant breaking the lease. The paragraph on security deposit says this: "The deposit is to be held by the Landlord as security against the breach of any covenants or conditions of this agreement and such deposit shall be refundable free of interest at the end of the tenancy less deductions for damages caused by the negligence of the Tenant and of any breach of this agreement." I construe this as a general statement rather than any specific reference to forfeiture of deposit in the event of lease termination.
C. At the same time, I am a fan of court room shows such as Judge Judy and The People's Court where a lot of Tenant-Landlord cases are judged. From these shows, as well as some research I have done on the web, it seems that the Landlord is usually not entitled to keep the deposit if he is not out anything as a result of the Tenant breaking the lease. In addition, they have a duty to mitigate their own loss in this process, failing which, they cannot claim compensation from the Tenant for the loss. For example, if the Landlord does not get rent for 3 months (as a result of the Tenant moving out), but has made no effort to rent out the unit in this period of time, he cannot hold the Tenant responsible for the 3 months' rent.
In my case, even though I am the party breaking the lease, I have already offered to help find a replacement tenant so that i) the Landlord will not suffer any loss of rent in the process and so that ii) she will not need to pay additional agent fees to find another tenant. But they have rejected my offer to help. Therefore, I construe this as their failure to take necessary action to mitigate their own loss.
My understanding of the lease agreement may not be accurate. And the practice observed in the US (as reflected in the Courtroom shows) may not be applicable in Singapore. Therefore, I am seeking the opinion of those on this forum that have some (preferably legal) experience in these matters.
As I am determined to go to the small claims court ("tribunal" as it is called here) if they do not refund my deposit, the question I have is this: Given the facts, relevant paragraphs of the lease, my rationale (especially 3 and C), and the Singapore law, would the Small Claims Tribunal support my contention that I am entitled to (at least) a refund of my security deposit?
Thank you!
Last edited by
byseeksconseil on Thu, 14 Feb 2013 5:01 pm, edited 1 time in total.