If the landlord fails to deliver possession of the property to the tenant at the beginning of the lease, the tenant may terminate the lease or sue someone for possession of the property. If the tenant decides to terminate the lease, the tenant must give the landlord a written notice saying that the tenant will terminate the lease on a date at least five days from the notice date. A sample of this notice can be found here.
In this case, the landlord must return all prepaid rent and deposit. If the tenant decides not to terminate the lease, the tenant may demand possession of the property from the landlord and may sue whoever has possession of the property. This means that if a previous tenant is still occupying the property, the tenant can evict that previous tenant. In this case, the tenant can recover actual money damages sustained by the tenant because the tenant could not take possession of the property, such as charges for a hotel room or storage for the tenant’s belongings. If the failure to deliver possession of the property is “willful and not in good faith,” the tenant may recover the greater of three months’ rent or three times the tenant’s actual money damages and attorney fees. THE TENANT SHOULD CONSULT AN ATTORNEY BEFORE PURSUING ANYONE FOR A WILLFUL, BAD FAITH FAILURE TO DELIVER POSSESSION.
