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!
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.
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.
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.
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.
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.
If you seek legal advice, I recommend that you consult a licensed member of the bar association in the state in which you live.
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.
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.
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
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.
If you’re not already a member, join one of the landlord associations for your area. Lots of information, experience and resources there.
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.
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.
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.
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
I have pictures and engineering report will be coming.
At least MA got rid of rent control.
.
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.
Look on the bright side, maybe they will use you as a reference on another rental app.
Then you get your money’s worth!
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
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