My previous tenant (of 3 years) moved out at the expiration of his lease the end of March. I asked him to make sure the place was in the same clean condition as when he moved in. It was not. In fact it was a disaster. The worst of it was the oven. It was impossible for me to get it clean. I will have to buy a new one. Can I deduct the cost of a new oven from his security deposit?
Deducting from a security deposit can be VERY risky. First off, in order to do so, you must have followed ALL requirements of the law, including keeping the money in a separate account, as well as providing your tenant with receipts showing exactly when the money was taken as well as a receipt showing the bank and account number where it was held. If you failed to meet ANY of the requirements, you have forfeited your right to the deposit. Secondly, a deposit can only be used for "damages" which exceed "reasonable wear and tear." A tenant is not required, legally, to return the apartment in the "same" condition it was rented in, they are required to return it in a condition that would be normal for their having lived there for three years. While it is not clear, court's have indicated you can't withhold from a deposit for cleaning AT ALL. It is also arguable that having to replace a stove is not "reasonable" and even if you did so, you would have to pro-rate the cost of the stove based on how old it was. Without knowing more and reviewing all your docs its impossible to say if you might even be able to withhold, but even if you can, an attorney is unlikely to say that you can withhold the full cost of a stove for this reason. Keep in mind that if you improperly withhold, or don't return the deposit to the tenant within 30 days of the end of the tenancy (received by him by April 30) then you may be liable for THREE TIMES the amount withheld, PLUS attorneys fees. As a result, you are probably safest just returning it. If you feel he owes you money after that, bring a separate small claims action.
I am a Massachusetts attorney and answer questions based on Massachusetts law. The above answer is for educational purposes only and does not create an attorney client relationship or constitute legal advice.
I agree with Atty. Owens. Unless that stove is actually damaged, and it can be proven the tenant damaged it, I would not withhold for cleaning issues, however extensive the cleaning issues are. And, of course, as stated, if you did not comply with the security deposit law, you can't use the deposit and trying to do so will just open up a counterclaim.
I'd return the deposit. If you can prove damage by the tenant, sue in small claims later if you wish.
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