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Have a Landlord Question. Holding Back Securty Deposit Because of Damages...
040214 | chickensoup

Posted on 04/02/2014 9:57:19 AM PDT by Chickensoup

Have a Landlord Question. Holding Back Securty Deposit Because of Damages...

and received a demand to pay and threats of lawsuit.

From only one of the tenants, the one without a job.

I have had tenants for over 30 years and have never held back monies, but these people cause a lot of inside damage, as well as damages to septic piping with their truck, engineering is waiting til spring to fully assess. Help!


TOPICS:
KEYWORDS: landlord; rent; tenants
Have a Landlord Question. Holding Back Securty Deposit Because of Damages...

and received a demand to pay and threats of lawsuit.

From only one of the tenants, the one without a job.

I have had tenants for over 30 years and have never held back monies, but these people cause a lot of inside damage, as well as damages to septic piping with their truck, engineering is waiting til spring to fully assess. Help!

1 posted on 04/02/2014 9:57:19 AM PDT by Chickensoup
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To: Chickensoup

it varies by state


2 posted on 04/02/2014 9:59:23 AM PDT by Mount Athos (A Giant luxury mega-mansion for Gore, a Government Green EcoShack made of poo for you)
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To: Chickensoup

Well, I suppose if you can document the damages were caused by the tenant then you certainly can withhold the security deposit.......


3 posted on 04/02/2014 9:59:49 AM PDT by Hot Tabasco (Under Reagan spring always arrived on time.....)
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To: Chickensoup

Document...take pictures.

You should probably get in the habit of taking pictures prior to them moving in too.


4 posted on 04/02/2014 10:00:10 AM PDT by lepton ("It is useless to attempt to reason a man out of a thing he was never reasoned into"--Jonathan Swift)
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To: Chickensoup

You should check the laws of the State and City to determine what the chance they these people will collect. BUT, if everything is documented, AND it cannot be considered usual wear and tear, then it sounds more like bluster. More than likely they will file against you in small claims court. At that time submit your proof.
Unless, they actually file I would not worry about it, even then FACTS speak louder in court. Stay calm and do not fight with the ex-tenant in court.


5 posted on 04/02/2014 10:03:05 AM PDT by Exton1
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To: Mount Athos; Chickensoup
it varies by state

It sure does. If you're in Massachusetts forget it. A rental agent there got sued because she asked a prospective tenant where she was from. Some areas are very pro-tenant.

6 posted on 04/02/2014 10:03:10 AM PDT by ladyjane
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To: Chickensoup

I suspect your State has a time period for returning security deposits and a process if not returning all monies. Colorado, for instance, has 60 days max to return funds or to state in writing the damages and the amounts being withheld. It is that simple here. Check your State’s website. Most have information on line about this subject.


7 posted on 04/02/2014 10:05:59 AM PDT by CodeToad (Arm Up! They Are!)
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To: Chickensoup

document the damage, get estimates of repair, hold back the security deposit.

if they’ve damaged the place either hand them an itemized bill payable immediately to release the deposit back, or the deposit is going to be kept to pay the damage repair. their choice. they can’t damage a place and then leave and expect their deposit back. that’s why you collect a security deposit.


8 posted on 04/02/2014 10:06:38 AM PDT by Secret Agent Man (Gone Galt; Not averse to Going Bronson.)
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To: Chickensoup

Don’t worry about it until you hear from their lawyer.

If they have enough money to pay a lawyer, and start spending that money, they will lose the security deposit anyway.

You won’t have to incur expense until their lawyer convinces you that they have a case he is willing pursue.


9 posted on 04/02/2014 10:06:52 AM PDT by Safrguns (PM me if you like to play Minecraft!)
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To: Chickensoup

Give them your card and instruct them to have their lawyer call you.


10 posted on 04/02/2014 10:08:38 AM PDT by Safrguns (PM me if you like to play Minecraft!)
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To: Chickensoup

Mail him back those pictures you took.


11 posted on 04/02/2014 10:09:22 AM PDT by sickoflibs (Obama : 'You can keep your doctor if you want. I never tell a lie ')
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To: Chickensoup

take a video of the rental... do not get rid of anything they may have left behind... do not put it on the curb, take it to the dump, sell on Ebay... document it and keep it according to your city’s ordinance/law... even if you ask them to come pick up... hold on to it...


12 posted on 04/02/2014 10:10:11 AM PDT by latina4dubya (when i have money i buy books... if i have anything left, i buy 6-inch heels and a bottle of wine...)
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To: Chickensoup

If you are in Maine (checked your profile), your State gives you 30 days to return the funds or provide in writing a mailing to their last known address (this is common and is often the rental address if they did not leave a forwarding address) the reasons for withholding the funds. If you do not know the damage until Spring because of ground thaw then you also do not know the actual damages and might not be able to withhold funds. If there is visible damage then your only option will be to get a septic company out there right now and make a good faith estimate on the fix, winter or not. A Winter fix of course will be much more than a Spring fix in Maine.


13 posted on 04/02/2014 10:10:36 AM PDT by CodeToad (Arm Up! They Are!)
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To: Chickensoup

Yep, it depends on the state and locality where you live and what the ordinances say. You may have to give them a statement by a certain time, for example, in order to legally withhold their deposit.


14 posted on 04/02/2014 10:14:03 AM PDT by Boogieman
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To: Chickensoup
The answer to your question is very state specific.

In CA and OR, where I have experience, the law is that you must provide an accounting of what you did with their deposit within X days. Typically X=30, but this can vary.

A accounting is not the return of the entire deposit, but a list of the damages and a refund of the deposit over & above the damages.

As I see the issue here, if it is going to take longer than 30 days for the damage to the septic piping to be fully assessed, the accounting for the damage would have to be a maximum estimate from a plumber or septic company. But, this is fraught with danger. How can you re-rent the house without a working septic? I would be inclined to have the pipes repaired, even if the landscape can not be fully repaired until later. Then you can deduct for the cost of the pipe repair now, and deduct the estimate for landscape repair also. The more actual cost you have, the better off you are.

Don't forget the limit on days for an accounting. If you go over it, the tenant is entitled to all of the deposit back, plus punitive damages.

15 posted on 04/02/2014 10:14:16 AM PDT by CurlyDave
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To: Chickensoup

Unless you have a checklist that shows all the broken stuff was okay when you rented it, outside of normal wear and tear, you may be out of luck. But it varies from state to state.................


16 posted on 04/02/2014 10:14:53 AM PDT by Red Badger (LIberal is an oxymoron......................)
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To: Chickensoup

Didn’t the rental contract/agreement mention the deposit and why it was necessary ???

that it would be withheld to pay for any damages ??

that the apartment must be in good repair and reasonably clean when they leave ???

Every time I rented years ago I signed agreeing to those terms ...

Take pics and sue them for damages if the repairs are above what the deposit was..


17 posted on 04/02/2014 10:17:46 AM PDT by Tennessee Nana
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To: Chickensoup

Dem’ der’ “securty” deposits will kill ya’.


18 posted on 04/02/2014 10:18:28 AM PDT by laweeks
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To: Chickensoup

Texas has a law that landlords have 30 days from move out to either send the deposit back or a letter detailing what had to be fixed and the cost. If not then the landlord is liable for 3 times the deposit and $100. When we rented our last house before we bought this one, the landlord ( a real *itch) waited almost 6 months and then sent a tenth of it back. We filed suit and won. The judge told her she failed in her duty as a landlord and had to pay us the full $4250 plus interest. Had a judgment on her and last month (2 months after the judgment) she wanted to sell her home. We got the money plus $38 in interest.


19 posted on 04/02/2014 10:19:45 AM PDT by gopheraj
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To: Chickensoup

Give them the money and chalk it up to experience. Having been a renter at times I hardly ever got back a deposit. I always cleaned up the places and left them as nice as possible but there is the principle of Fair Wear and Tear. How long have they rented? How much work would it have taken to restore the property had they never been there? How well have you taken care of your duties as a landlord? Just asking.

Whatever you do don’t be greedy. Your karma is at stake.


20 posted on 04/02/2014 10:20:59 AM PDT by webheart (Watch out for the bots! They will disagree with you!)
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To: Chickensoup

In NC...PRIOR to occupancy, landlord & tenant do a walkthru to determine pre-existing damage, documenting damage on a form. AFTER tenant moves out, landlord inspects property for damage, compares to “previous damage” form, notifies tenant of new damage and the estimated cost to repair. Landlord withholds estimated repair costs from deposit and refunds the remainder to departed tenant. Has to be done within 30 days, I believe.


21 posted on 04/02/2014 10:21:17 AM PDT by moovova
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To: Chickensoup

As someone else posted —it depends on state. I work for a landlord tenant lawyer in NYC and in housing court (we have a special housing court here)many judge are pro-tenant. If the tenant is such a a-hole the judge isn’t going to be too sympathetic. I would hold back security because of damages and let him take you to court-—most likely small claims in your state.


22 posted on 04/02/2014 10:28:54 AM PDT by brooklyn dave
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To: Chickensoup
This is not legal advice. However, follow your state and city laws to the letter. Landlord-tenant laws are always pro-tenant.

If you are from Maine, the issue is covered by Title 14, Chapter 710-A (SECURITY, DEPOSITS ON RESIDENTIAL RENTAL UNITS), § 6033 (Return of the security deposit). Link.

1. Normal wear and tear. A security deposit or any portion of a security deposit shall not be retained for the purpose of paying for normal wear and tear.

2. Return; time; retention. A landlord shall return to a tenant the full security deposit deposited with the landlord by the tenant or, if there is actual cause for retaining the security deposit or any portion of it, the landlord shall provide the tenant with a written statement itemizing the reasons for the retention of the security deposit or any portion of it:

A. In the case of a written rental agreement, within the time, not to exceed 30 days, stated in the agreement; and

B. In the case of a tenancy at will, within 21 days after the termination of the tenancy or the surrender and acceptance of the premises, whichever occurs later.

The written statement itemizing the reasons for the retention of any portion of the security deposit must be accompanied by a full payment of the difference between the security deposit and the amount retained. Reasons for which a landlord may retain the security deposit or a portion of the security deposit include, but are not limited to, covering the costs of storing and disposing of unclaimed property, nonpayment of rent and nonpayment of utility charges that the tenant was required to pay directly to the landlord.

The landlord is deemed to have complied with this section by mailing the statement and any payment required to the last known address of the tenant.

3. Penalty. If a landlord fails to provide a written statement or to return the security deposit within the time specified in subsection 2, the landlord shall forfeit his right to withhold any portion of the security deposit.

Wrongful retention of a security deposit is covered in § 6034 (Wrongful retention; damages). Link.

1. Notice to landlord of intention to bring suit; presumption on failure to return deposit. If the landlord fails to return the security deposit and provide the itemized statement within the time periods in section 6033, the tenant shall give notice to the landlord of the tenant's intention to bring a legal action no less than 7 days prior to commencing the action. If the landlord fails to return the entire security deposit within the 7-day period, it is presumed that the landlord is wrongfully retaining the security deposit.

2. Double damages for wrongful retention. The wrongful retention of a security deposit in violation of this chapter renders a landlord liable for double the amount of that portion of the security deposit wrongfully withheld from the tenant, together with reasonable attorney's fees and court costs.

3. Burden of proof. In any court action brought by a tenant under this section, the landlord has the burden of proving that the landlord's withholding of the security deposit, or any portion of it, was not wrongful.

I don't know when this happened, or if this was a written lease or a tenancy at will, but you had either 21 or 30 days to provide a written statement itemizing the reasons for retention. Whether that period is stayed because of winter would be addressed in Maine case law, if at all, but my guess is that it isn't, knowing the general tenor of landlord-tenant law.

If you didn't given the written, itemized statement within those time periods, you cannot keep any of the security deposit.

If you didn't give the notice, you need to return all of the security deposit within seven (7) after receiving the intent to sue, otherwise you can be liable for double the amount of the security deposit, plus attorneys' fees and costs.

One bad experience with a pair of tenants is the reason I am no longer a landlord.

23 posted on 04/02/2014 10:29:42 AM PDT by Scoutmaster (Is it solipsistic in here, or is it just me?)
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To: Chickensoup

I take it YOU are the landlord. The Security Deposit should have been held in an escrow account (one that gives interest, not much these days) and if damage was done, you have means to recoup the loss, IF you have photographic evidence of the extent of damage. If you (the landlord) had a sewer back-up (for instance and didn’t fix it) you probably will be hung for ALL the damage. When a landlord gives back the Security Deposit, he MUST also give the interest off that account.


24 posted on 04/02/2014 10:29:48 AM PDT by Safetgiver ( Islam makes barbarism look genteel.)
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To: Chickensoup

oh yeah document yr A$$ off
more documentation the better
if this guy is as pathetic as he sounds
he’d just come into court either just demanding his
deposit and screaming and crying and making himself
look like an idiot.


25 posted on 04/02/2014 10:30:58 AM PDT by brooklyn dave
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To: Chickensoup
MY POST #23 IS NOT LEGAL ADVICE AND SHOULD NOT BE RELIED UPON AS SUCH IN ANY MANNER.

If you seek legal advice, I recommend that you consult a licensed member of the bar association in the state in which you live.

26 posted on 04/02/2014 10:36:47 AM PDT by Scoutmaster (Is it solipsistic in here, or is it just me?)
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To: Chickensoup

I documented the damage and took them to small claims court. The alternative is to document it send him a list of the damages and wait for him to take you to small claims court. Bring the pictures with you. It also helps to have a current newspaper in several of the pictures so he can’t say it was from a previous tenant.


27 posted on 04/02/2014 10:47:23 AM PDT by verga (Poor spiritual health is often manifested with poor physical health.)
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To: Chickensoup

In Oregon you have 30 days to give a written accounting of their deposit funds. You can apply the deposit to all damages and back rent too. You cannot apply a pet deposit to human damages, so we just up the deposit an extra $300 -$500 extra when there is a pet and call it all a security deposit, it can be applied to all damages, late fees, court costs and unpaid rent.


28 posted on 04/02/2014 10:52:01 AM PDT by thirst4truth (Life without God is like an unsharpened pencil - it has no point.)
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To: Chickensoup

http://www.ptla.org/rights-tenants-security-deposits

http://www.nolo.com/legal-encyclopedia/chart-cleaning-repairs-landlord-deduct-29017.html

Deducting Cleaning and Repairs Costs From a Security Deposit

Landlords are permitted to deduct from security deposits for damage or excessive filth, but not for ordinary wear and tear.

Typically, landlords may charge tenants for any cleaning or repairs necessary to restore the rental unit to its condition at the beginning of the tenancy. Landlords may not, however, use the tenant’s security deposit to cover the costs of ordinary wear and tear. Here are examples of wear and tear versus damage or excessive filth:

Ordinary Wear and Tear: Landlord’s Responsibility

Damage or Excessive Filth: Tenant’s Responsibility

Curtains faded by the sun

Cigarette burns in curtains or carpets

Water-stained linoleum by shower

Broken tiles in bathroom

Minor marks on or nicks in wall

Large marks on or holes in wall

Dents in the wall where a door handle bumped it

Door off its hinges

Moderate dirt or spotting on carpet

Rips in carpet or urine stains from pets

A few small tack or nail holes in wall

Lots of picture holes or gouges in walls that require patching as well as repainting

A rug worn thin by normal use

Stains in rug caused by a leaking fish tank

Worn gaskets on refrigerator doors

Broken refrigerator shelf

Faded paint on bedroom wall

Water damage on wall from hanging plants

Dark patches of ingrained soil on hardwood floors that have lost their finish and have been worn down to bare wood

Water stains on wood floors and windowsills caused by windows being left open during rainstorms

Warped cabinet doors that won’t close

Sticky cabinets and interiors

Stains on old porcelain fixtures that have lost their protective coating

Grime-coated bathtub and toilet

Moderately dirty mini-blinds

Missing mini-blinds

Bathroom mirror beginning to “de-silver” (black spots)

Mirrors caked with lipstick and makeup

Clothes dryer that delivers cold air because the thermostat has given out

Dryer that won’t turn at all because it’s been over-loaded

Toilet flushes inadequately because mineral deposits have clogged the jets

Toilet won’t flush properly because it’s stopped up with a diaper


29 posted on 04/02/2014 10:52:21 AM PDT by freedom4ever
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To: Chickensoup

They apparently do not understand the meaning of security deposit

Tell them to go to court, but make sure you document damage with photographs. COUNTER-SUE for amount of damage costs over the sec. deposit amount.

DO NOT give it to them. they don’t have a chance in court.


30 posted on 04/02/2014 10:57:44 AM PDT by Mr. K (If you like your constitution, you can keep it...Period. PALIN/CRUZ 2016)
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To: Chickensoup

If you’re not already a member, join one of the landlord associations for your area. Lots of information, experience and resources there.


31 posted on 04/02/2014 10:58:46 AM PDT by Bubba Ho-Tep ("More weight!"--Giles Corey)
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To: Chickensoup

In Kansas we have I think 30 days to do an accounting of why we withhold the damage deposit. Mr. Mercat takes photos etc. and keeps track of his time. It’s in our lease that he can change for stuff. We never charge for normal wear and tear. In 35 years we’ve only had it challenged twice and won both times.


32 posted on 04/02/2014 11:03:09 AM PDT by Mercat
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To: Chickensoup

Varies WIDELY from State to State. No one can really give you a good answer. It would be worth the minimal consult fee to see a local attorney who handles Landlord/Tenant matters.


33 posted on 04/02/2014 11:07:36 AM PDT by RIghtwardHo
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To: CodeToad

I screwed up.

I sent it out in 31 days. I have to return deposit.

My insurance company has their new addresss if they want to pursue getting money from them.


34 posted on 04/02/2014 11:10:28 AM PDT by Chickensoup (Leftist totalitarian fascism is on the move.)
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To: Chickensoup

Plan on being sued in small claims court. Take pictures (hope you have before pictures too), document with receipts the cost of repairs (not wear and tear stuff), if you had extreme clean up costs be sure and document all of those.

You can keep the security deposit to cover those costs but YOU have to prove that it was necessary. Should be easy with what you listed. Oh and be sure and get an expert on your septic tank situation to testify at the small claims hearing. Always better to have that witness there.

Tell the tenant to go pound sand and see you in court


35 posted on 04/02/2014 11:10:46 AM PDT by Nifster
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To: Nifster

I have pictures and engineering report will be coming.


36 posted on 04/02/2014 11:11:47 AM PDT by Chickensoup (Leftist totalitarian fascism is on the move.)
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To: ladyjane

At least MA got rid of rent control.

.


37 posted on 04/02/2014 11:12:34 AM PDT by Mears
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To: ladyjane; Chickensoup

True...each state has their own laws regarding eviction and security deposits. A tenant can be put out for non payment of rent, but in my state it requires an eviction from court if they refuse to go.

If you can document cost of damage repair then in my state you can deduct it from security deposit and if it’s a lot more, owner can sue tenant. Not all states are owner friendly.


38 posted on 04/02/2014 11:22:42 AM PDT by Kackikat
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To: Chickensoup

Look on the bright side, maybe they will use you as a reference on another rental app.

Then you get your money’s worth!


39 posted on 04/02/2014 11:41:43 AM PDT by VRWCarea51
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To: Chickensoup

what is in the language of your lease that you all signed?

Mine requires a move-out inspection within 30 days, tenant to be present, and report of any damages and costs of repairs to be made as result of said inspection

Hopefully you have proof of the condition of the property when they took possession (a pre move-in report you all signed) as opposed to its current condition and damages now present

Get the inside damage assessed and repair estimates NOW
Invite the scumbags to be there
Time is of the essence when holding their money- look at your lease


40 posted on 04/02/2014 11:46:27 AM PDT by silverleaf (Age takes a toll: Please have exact change)
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To: ladyjane

I am a landlord in Massachusetts. I have held back security deposits. Take photos and document all damage. Make sure you keep all receipts for work done. Remember you cannot pay yourself for any work that you do.

Know the difference between normal wear and tear and willful damage. Example, scratches on the floor: normal wear and tear. Holes in the floor, damage.


41 posted on 04/02/2014 11:46:47 AM PDT by outpostinmass2
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To: Chickensoup

Before and after photos go a long way to proving your side of it.


42 posted on 04/02/2014 11:48:46 AM PDT by Mad Dawgg (If you're going to deny my 1st Amendment rights then I must proceed to the 2nd one...)
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To: Chickensoup
From only one of the tenants, the one without a job.

The employment status of the tenant witholding the security deposit is irrelevant. The State in which your property is located, however, is relevant. What State would that be?

Regards,

43 posted on 04/02/2014 11:59:13 AM PDT by alexander_busek (Extraordinary claims require extraordinary evidence.)
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To: lepton

You should probably get in the habit of taking pictures prior to them moving in too.

Excellent advice. Unfortunately too late for these creeps.


44 posted on 04/02/2014 12:11:45 PM PDT by logic101.net (How many more children must die on the altar of gun control?)
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To: Chickensoup

Sounds about the only option for you right now. Sucks, but that’s life. As you said, you can always make claim later.


45 posted on 04/02/2014 12:15:37 PM PDT by CodeToad (Arm Up! They Are!)
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To: Chickensoup

Thats what the security deposit is for. All apt buildings hold back deposits for damage in excess of normal wear and tear and so can you. My sister in law does it all the time on her 3 rental houses.


46 posted on 04/02/2014 12:18:37 PM PDT by Georgia Girl 2 (The only purpose o f a pistol is to fight your way back to the rifle you should never have dropped.)
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To: Chickensoup

In all seriousness:

Either get yourself a decent advisor (attorney or otherwise) or divest yourself of your properties and get out of the landlord/tenant business.

If you have to pose this question here, you likely don’t know the answer to much more serious and more liable scenarios that could land you in court and in the poor house....


47 posted on 04/02/2014 12:48:09 PM PDT by logi_cal869
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To: Chickensoup

Read your lease, and look up your landlord/tenant laws. You probably have to itemize the amount withheld from the security deposit, and usually have a stated time period to return any balance owed to them. I’d say get a lawyer, but they frequently cost more than eating a loss.

They should be leaving it as they found it, minus “normal wear and tear”, which can be a bear to interpret.


48 posted on 04/02/2014 2:19:07 PM PDT by JimRed (Excise the cancer before it kills us; feed & water the Tree of Liberty! TERM LIMITS NOW & FOREVER!)
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