Q: Landlord wont refund application fee, agent knew was already occupied.
Agent and I discussed one particular apartment unit I wanted to rent. The leasing agent told me to submit and pay $45 for the application for that apartment. They later told me the apartment had already been leased to someone else a few days before my application was requested. Before knowing the apartment had not been available, I sent an email asking what was going on with my application. They never replied. I finally called and they say "we don't refund application fees." I said but you told me I could get that apartment. Is that legal?
A:
Application fees are for the application, not the apartment. You would need to enter into a contract with the landlord for the apartment also. Without knowing all the facts, my sense is that what the landlord did is legal.
In general, application fees are legal if they relate to actual costs incurred by the landlord in leasing the rental. For example, they may have used the money for a tenant background check. It is true that many state laws prohibit landlords from using application fees as a "profit center" or the cost of acquiring tenant screening reports or limit the amount that can be charged (e.g., $40), but that does not seem to be the situation here.
However, if you do later obtain facts that indicate they are doing illegal (e.g., never renting and only taking application fees), I would recommend contacting a class action lawyer. No lawyer that I know will go through the legal process to return $45. A lawyer might, though, if it was brought on behalf of all similarly situated people.
A: It sounds like a slight of hand situation by the leasing agent. Whether it is legal is a question that a judge would have to make. I know of no Virginia Code section that addresses your situation. It is a question of fact for a judge. If you bring a lawsuit, you will have the burden of proof that supports your claim that you had the right to lease the apartment and you should be reimbursed for your application fees. You could bring a small claims action in Virginia if the amount is less that $5,000. No attorney is needed in a small claims action.
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