Landlord cannot deliver possession

[Matyas Sustik]

[We have been landlords for 8+ years in TX, and for the last 5 we were also renters in CA. Where we live, it is more economical to rent than to own. So we know both sides of the transaction.]

We are about to sign a new lease that is scheduled to start 3 months from now. The future landlords are inexperienced. They own the house and plan to move to a new city due to a job change. Instead of using official forms (from a realtor or ezlandlordforms.com) they made up a contract that they based on other contracts they have seen. (I actually brought ezlandlordforms.com to their attention, but in vain.)

There is a section in the contract that says this:

"POSSESSION: Tenant(s) has examined the condition of the Premises and by taking possession

acknowledges that they have accepted the Premises in good order and in its current condition except

as herein otherwise stated. Failure of the Landlord to deliver possession of the Premises at the start

of the Lease Term to the Tenant(s) shall terminate this Agreement at the option of the Tenant(s).

Furthermore, under such failure to deliver possession by the Landlord, and if the Tenant(s) cancels

this Agreement, the Security Deposit (if any) shall be returned to the Tenant(s) along with any other

pre-paid rent, fees, including if the Tenant(s) paid a fee during the application process before the

execution of this Agreement."

Note that there is no stipulation regarding damages to Tenant or indemnifying Landlord from damages in

case Landlord does not deliver possession. This makes me assume that should the Landlord not deliver

possession (you know 3 months is a long time, something can happen with the job or else) then legal action

can be brought for damages.

We would suffer monetary damages: we would have to move into a hotel (assuming we already gave our 30

day notice) and then move again to another house. The cost of the second move is clearly damage. We may

also pay more staying in a hotel while suffering from lower living standards. In reality this would be a major

problem way beyond the monetary issue. We spent 2 months finding a new place. My wife is expecting our

second child, so you can imagine.

Since the contract does not mention damages, can I assume that we could seek those in teh unlikely event of Landlord

not performing?

I also considered that the equitable solution would be to explicitly state in the contract that if Landlord does not deliver

possession, then Tenant is entitled to damages not exceeding the amount of security deposit. This would show that

this is a two way street as far as risk and trust goes. However, I am worried that if I bring this up, then the issue will

come to light and the Landlord will insert instead wording so that Landlord is not responsible for damages in case Landlord

cannot deliver possession. There is exactly such a clause in our present lease contract. In our contracts as landlords we do not

use such language.

So I am included to stay silent about the issue and if the unlikely situation occurs and Landlord cannot deliver possession,

I intend to not cancel the contract, but sue for non-performance and damages (if negotiations do not get us the result we want.)

I wonder what chances would you give to such legal action?

Thanks!