Opinion
No. 75-831
Decided July 15, 1976.
In action to recover damages for failure to return rental security deposit, trial court entered judgment awarding treble damages, attorney's fees, and costs. Defendant appealed.
Affirmed in Part, Reversed in Part.
1. LANDLORD AND TENANT — Return of Security Deposit — Landlord Allowed One Month — Recovery of Treble Damages — Additional Seven Day Notice. Statute allows the landlord one month after termination of a lease or surrender and acceptance of the premises within which to return a security deposit, and to recover treble damages, a tenant must give the landlord an additional seven-day period; thus, where statutory notice was given by tenant only nine days after surrender of the key to the premises, and where suit was commenced prior to the expiration of the additional seven-day period, trial court's award of treble damages was improper.
2. Untenantable Condition — Landlord Fails to Improve — Tenant Surrenders Premises — Rescission Permitted. Where tenant agreed to rent a house in untenantable condition, and landlord promised to install carpeting and paneling and renovate the kitchen, but landlord failed to make the improvements and tenant surrendered the premises, the tenant was entitled to rescission of the rental agreement and the right to be placed in status quo.
Appeal from the District Court of the County of El Paso, Honorable William M. Calvert, Judge.
MacLaughlin Ciccolella, Ann K. MacLaughlin, for plaintiff-appellee.
Mitchell L. Duke, for defendant-appellant.
McAuliffe sued Rooney for treble damages for Rooney's failure to return a rental "security deposit" as required by § 38-12-103, C.R.S. 1973. The trial court entered judgment in favor of McAuliffe, the tenant, in the amount of $982.05, consisting of $672 for treble damages, $10.05 for a utility bill paid by McAuliffe, and $300 attorneys' fees. Rooney contends that § 38-12-103, C.R.S. 1973, provides no basis for the relief granted, and that the trial court erred in awarding treble damages. We affirm in part and reverse in part.
On December 27, 1974, McAuliffe agreed to rent a house from Rooney on a month-to-month basis at an agreed monthly rental of $140. Since the premises were in untenantable condition, Rooney agreed that he would install carpeting and paneling and would renovate the kitchen. McAuliffe gave Rooney a check for $224, which included $9 rent for December 30 and 31, $140 rent for January, and a $75 damage deposit.
On January 4, McAuliffe picked up the key to the house. However, since none of the renovation promised by Rooney had been accomplished by January 12, McAuliffe returned the key on that date.
On January 21, Rooney received a letter from McAuliffe's attorney demanding return of the $224 payment and notifying Rooney that his failure to comply would result in suit. Rooney was served with summons and complaint in this action on February 15. On February 18, Rooney tendered his check for $88.61 to McAuliffe's attorneys. Rooney explained in a letter accompanying this check that the refund was a return of the $75 damage deposit, plus $13.61, representing a credit for four days' rent in January after the house had been re-rented, less deduction for the cost of the rental advertising.
The trial court concluded that the $224 paid by McAuliffe to Rooney, although designated by McAuliffe as a $75 damage deposit and $149 rent payment, "was, in fact, money given by way of a security deposit to accomplish the rental of the premises at 1339 North Royer, in that there was work to be done, and this was, evidently, the way the work was to be gotten done. The work was not done, at least, or was terminated. The premises were surrendered." The trial court also concluded that the landlord had failed to comply with the requirements of § 38-12-103(1), C.R.S. 1973, because he had failed to return the entire amount within 30 days, apparently reckoning the 30-day period from January 12, the date on which the key was returned.
Rooney contends that he did not accept McAuliffe's surrender of the premises on January 12, within the meaning of § 38-12-103(1), C.R.S. 1973, until January 27, the date on which the house was re-rented. He urges that if the trial court's finding that the premises were surrendered is deemed to include a finding that Rooney accepted the surrender, then the trial court erred as a matter of law. Therefore, Rooney concludes, the award of treble damages was improper.
It is not necessary to consider the date on which Rooney accepted McAuliffe's surrender of the premises. Even assuming an acceptance on January 12 upon return of the key, the January 21 demand for return of the deposit and the notice of suit were premature, as was the commencement of this action on February 15.
[1] Section 38-12-103(1), C.R.S. 1973, allows the landlord one month after termination of a lease or surrender and acceptance of the premises within which to return a security deposit. To recover treble damages, a tenant must give the landlord an additional seven-day period for return of the security deposit, as required by § 38-12-103(3)(a), C.R.S. 1973. See Turner v. Lyon, 189 Colo. 234, 539 P.2d 1241 (1975). Here, the statutory notice was given within the one-month period allowed by § 38-12-103(1), and only nine days after the surrender of the key to the premises. Moreover, suit was commenced prior to the expiration of the additional seven-day period contemplated by the notice requirements of § 38-12-103(3)(a). A tenant may not thus accelerate the statutory time requirements. Therefore the award of treble damages was improper.
[2] Since McAuliffe cannot recover more than his $224 payment for rent and damage deposit, plus the January utility bill of $10.05, it is immaterial whether the trial court properly construed the $224 payment as a "security deposit" under § 38-12-102(2), C.R.S. 1973. The primary function of a complaint is to give notice, and if adequate notice is given, the theory of the action is unimportant. Bridges v. Ingram, 122 Colo. 501, 223 P.2d 1051 (1950). Here, the uncontroverted evidence and the findings of the trial court, which are supported by the record, entitled McAuliffe to rescission of the rental agreement and he had the right to be placed in status quo. See Bridges v. Ingram, supra; Hall v. Sunberg, 72 Colo. 90, 209 P. 638 (1922).
Accordingly, the judgment for treble damages and attorneys fees is reversed, and the cause is remanded with directions to enter judgment in favor of plaintiff for $234.05, together with interest from the date of entry of the original judgment herein and the costs of suit. Each of the parties to this appeal shall be taxed his own costs.
JUDGE BERMAN and JUDGE STERNBERG concur.