Breaking the lease and security deposit

[byseeksconseil]

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!

[x9200]

It is not a black and white situation. Technically IMHO the clause "B" you listed covers premature termination with the tenant at fault. For what you are going to do you will be in breach of same of the TA clauses.

Secondly the fact you showed willingness to find a substitute tenant does not mean automatically the LL has to accept your offer. This will probably be seen as not fully rational behavior from her side but still it will not wipe out clean your responsibility. I don't think you will have to pay a full equivalent of 3 month lease (or whatever the court will say is a reasonable time to find a new tenant) but I expect you will have to pay something. TA is just a specific agreement and you have the whole civil and perhaps contract law sitting behind with general responsibility for damages and rights for compensation.

On a different note: This is true that technically the LL is not responsible for noisy neighbours but it is also true that you have right for peaceful enjoyment of the property (as typically stated in the TA). In such case your agreement party is your LL who is not able to deliver what she has promised. This still makes her IMHO legally responsible for the situation. Later she can (theoretically) sue her neighbours for the damages. Why don't you try to go over this line and demand in SCT to lower the rent or unconditional TA termination? Of course ensure first you can prove you have some noisy neighbours and even better have your LL acknowledge this.

[sundaymorningstaple]

Before doing anything, I would suggest that OP invests some change and get somebody with a decibel meter and do some measuring of noise levels to ensure that the noise levels are above the allowable guidelines as outlined by the government (this is used against contractors often). If the sound levels are within acceptable guidelines, all your grouses will be for naught. If they are above the acceptable levels then you "may" have a case as I don't think the landlord can be held accountable for noise consideration over which they have no control. So at the point, yeah, maybe a arbitrated solution over deposits can be concluded.

[LongTimeHere]

Your landlord may be fully aware of the hell you will go through as you are probably not the first tenant who has complained. Landlords change agents and tenants often to work around this, after all they aren't the one suffering.

You need to quantify the situation. Take a decibel meter and note the times and amount of noise. If they are below the legal guidelines you have no case.

Otherwise you might want to try the following:

If the noise is above HDB limits record it and then complain to the Town council. The Landlord will be notified. Most landlords who rent often don't like authorities involved.

Got to the various property forums and start posting your HDB block, unit number and the issue you face. Your landlord will certainly not like this, it will also get the attention of housing agents. Moreover tell the landlord you are going to do this as you don't want other people to suffer.

Basically think of ways you can become a pest without doing anything illegal.You have a right to 'peaceful enjoyment' as per the contract. Deny that peace to the landlord. At all times ensure you speak/write the truth and nothing else.

[byseeksconseil]

Thanks for the 2 replies so far.

To clarify, I do not think it is viable for me to pursue the argument that I need to move out because the noise is beyond a certain level. The cause of my (contemplated) move-out is somewhat irrelevant to the arguments that I intend to pursue pertaining to my case – see reasons 1, 2 and 3 listed. We can very well assume that I am having to move out for a totally different reason. I only mentioned the noise issue to provide a complete background.

The main part of my argument (which may or may not stand up in court (here)) is reason #3 - that I have offered to help mitigate any loss of rent – which MUST be the rationale for the landlord to keep the Tenant's deposit to begin with. But they rejected my offer to help. So any loss that they might suffer is their own fault - this is my reasoning. Alternatively, if there is no loss in the process for them (say, they manage to rent the unit before or shortly after I move out), what is the basis for keeping my deposit?

Judge Milian in The People's Court show (which is really a platform of binding arbitration, rather than a real small claims court) has been repeatedly saying something along this line in various episodes: "The court does not help put you in a BETTER position than before. The court helps you to recover your loss, so that you are WHOLE again...."

In my case, if the landlord does not suffer any loss, or if they can avoid the loss (had they taken up my offer to help – which they outright rejected), what is the basis for them to keep my deposit, notwithstanding how the relevant lease paragraphs may be interpreted, and notwithstanding the "market practice" which is what the agent has been referring to as the reason for keeping my deposit?

But I could be wrong for various reasons, though.

Thanks.

[LongTimeHere]

@byseeksconseil

Your argument lacks legal merit. The landlord gave the house for you to stay. That is the contract. If you cant stay then the landlord could be made responsible (with some difficulty). If you don't want to stay then you are the one breaking the contract.

The fact that you are finding another tenant is a strange argument, it can only be amicably settled.

[x9200]

The main part of my argument (which may or may not stand up in court (here)) is reason #3 - that I have offered to help mitigate any loss of rent – which MUST be the rationale for the landlord to keep the Tenant's deposit to begin with. But they rejected my offer to help. So any loss that they might suffer is their own fault - this is my reasoning. Alternatively, if there is no loss in the process for them (say, they manage to rent the unit before or shortly after I move out), what is the basis for keeping my deposit?

Well, I addressed this part in my response. You did not try to provide any counter arguments, you just repeated what your favorite judge from a tv show said. Bottom line still is that this is you who breaks the agreement causing all the trouble, not her, and she is not obliged to accept your offer and more-over even accepting it, there is no guaranty you will find a substitute tenant. I guess just go to SCT and find out if Judge Milian was right (as per your understand of her ruling).

[sundaymorningstaple]

One other thing, you are presuming Singapore Law follows US TV law. It doesn't. That's why US lawyers cannot practice law in Singapore. It might be time to turn off your slingbox and actually do some thinking instead of being a soap opera lawyer.

[taxico]

don't waste your time going to SCT or even filing a claim.

either give up your deposit and move out or stay put for the duration of your agreement.

i don't think the landlord will be wasting time/money tracking you down after you leave.

[byseeksconseil]

I do not think it is fair for you to say that (and in a slightly derisive tone, too), when I had already acknowledged humbly at the beginning that I could be wrong and that US law as reflected in the TV show may not be applicable in the Singapore context. Also, note that I did not use the word "follow" (your choice of word), which would imply subordination. I used "applicable", a relatively neutral word:

"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. "

One other thing, you are presuming Singapore Law follows US TV law. It doesn't. That's why US lawyers cannot practice law in Singapore. It might be time to turn off your slingbox and actually do some thinking instead of being a soap opera lawyer.

[byseeksconseil]

Because it is too time-consuming (and therefore not worth the effort, considering the amount of money being fought for), or that I am likely to lose, or both? Say more?

don't waste your time going to SCT or even filing a claim.

either give up your deposit and move out or stay put for the duration of your agreement.

i don't think the landlord will be wasting time/money tracking you down after you leave.