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Many tenants may have serious problems
recovering all or part of their security deposit. The most frequent problem
involves proof of the condition of the rental property at the commencement of
the tenancy compared to the condition at the termination of the tenancy. The
best way to avoid this problem is to keep complete records of all transactions
between landlord and tenant. This is especially important if the tenant
finds it necessary to bring an action in Small Claims Court to recover the
security deposit.
Small Claims Court is designed to handle
lawsuits to recover sums of money up to a maximum threshold which varies
by state.. There MIGHT NOT be a need
to hire an attorney because the judges don’t follow the formal courtroom rules
and procedures. Both parties tell their stories to the judge informally.
However, it is important to be prepared and to
have your case documented. For this purpose, the tenant should keep the
following items in a safe place:
- The receipt and/or cancelled check showing
that the security deposit has been paid.
- A copy of any written lease or rental agreement.
- A copy of the written request for a list of existing damages made by the
tenant within 15 days after moving in.
- The landlord’s list of existing damages.
- The tenant’s own list of existing damages signed by the landlord and/or
witness.
- Any photographs taken of the property.
- A copy of the tenant’s notice to quit.
- Any signed statement by the landlord and/or witness concerning the condition
of the property upon the tenant’s termination.
In order to have records of correspondence
between the landlord and tenant, any letters sent to the landlord should be sent
Registered Mail, Return Receipt Requested. This will guarantee that the landlord
actually receives the letter. The tenant should keep the return receipts
with the above materials
Preventative Steps to Take to Ensure a Deposit Return
A tenant must meet all of the above conditions to ensure
a refund of the deposit, but meeting those conditions is not all
the tenant should do. The chances of receiving return of the
deposit will be increased if the following suggestions are also
followed:
Move-in Inventory Inspection. When you move in your home
or apartment, make a list and take photos of the apartment and
any damage. Typically, you should do a walk through with the
owner or manager prior to moving in. Get them to sign an
acknowledgement of the damage and note what (if anything) will
be done. This will help you when you move out.
Move-Out Notice. A lease may require that the tenant give
the landlord 30 days written notice prior to move-out in order
to get the security deposit back. Even if
the lease does not require it, notify the landlord prior
to moving.
Move-out Inventory Inspection. When the tenant prepares
to move, the apartment or home should be cleaned and the
landlord asked to appear for a move out inspection. The tenant
should fill out another inventory form, similar to the move-in
inventory. Ideally, you should have a copy of the original move
in form - for both your use and the landlord.
Turn in the Keys. The keys should be turned in on the
exact day the tenant vacates the premises. If the keys are
turned in later, the landlord may be able to charge the tenant
additional rent or other charges under the lease. A tenant's
actual move out date is often considered to be when the keys are
turned in.
What Can the Landlord Deduct from the Security Deposit?
A landlord cannot legally deduct for normal
wear and tear. This refers to deterioration which
occurs during regular, daily, intended use of the rental unit,
for example nail holes in the walls from pictures or paintings.
See our guide.
Deductions from the Security Deposit
If the landlord makes any deductions from the deposit, a
written, itemized accounting of how much is being charged for
each item must be sent to the tenant. If the landlord fails to
provide such an accounting within 30 days after the tenant moves
out, the landlord may forfeit the right to withhold any part of
the deposit. Furthermore, the deductions taken from the deposit
must be for actual damages suffered by the landlord.
How to Dispute Deposit Deductions
If a tenant receives a list of deductions, it is
possible to dispute items on that list. The deductions should be
addressed by the tenant in a letter sent to the landlord. The
demand letter should include a response to each of the
deductions, explaining which charges are being disputed and why.
The tenant should keep a copy of the letter and send the
original by certified mail, return receipt requested.
If the tenant receives a partial refund along with the list of
deductions and wants to dispute some or all of the deductions,
the tenant may want to refrain from cashing the check. If the
tenant must cash the check then the tenant should tell the
landlord in the letter that even though the check has been
cashed, it does not mean the tenant agrees with the amount of
the check.
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