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Tips for Tenants #3: When I Leave, What Happens To My Security Deposit?

Posted by attorney Steven Rensch

Tips for Tenants #3: When I Leave, What Happens To My Security Deposit? The return, or not, of the security deposit happens at the end of the tenancy. But some of the events which determine your rights with respect to the deposit happen at the very beginning. And because everybody is pretty friendly at the beginning, and few people do their life in anticipation of litigation, things tend to slip through the cracks. Take a look at your lease before signing. First, the combination of last month's rent and security deposit cannot be more than 1.5 times the monthly rent. Second, the purpose of every fee or deposit must be stated in the lease (or another writing), and if the lease does not specify that the fee or deposit is non-refundable, it is automatically refundable. But more important at the front end is what you do to document the condition of the premises when you move in. The landlord is required by the Landlord-Tenant Act to provide you, at the very beginning of the tenancy, with a move-in inspection list. (I contend that, when the landlord fails to do so, he/she waives the right to claim damage at the end of the occupancy, although the Act does not say that.) No matter how exhausted you are moving in, you need to take the time to fill out the list - noting every detail (because the landlord will at the end of the lease) - and back the list with photos. When you turn the list over to the landlord, keep a copy and put it with the photos. This list is the only reliable way to refute the list that the landlord is sure to come up with at the end of the lease. When you leave the rental, and assuming you have paid your rent (if you owe rent, the landlord can take that amount from the security deposit), you are entitled to all refundable portions of the security deposit minus any damage done by you. Remember that you are not responsible for normal wear and tear, and that wear and tear after two years covers a lot more than wear and tear after six months. The landlord is required to give you notice of the move-out inspection. You should attend, with camera. In the alternative, you take your photos right before you leave. Take pictures of the same spots you photographed at move-in. Because tenants are pretty much done with the place when they leave, this step gets missed a lot. The problem is that more and more landlords take advantage of your exhaustion by hitting you with a deduction list way beyond the amount of the security deposit and into the thousands. I see it almost every day. Watch very closely to see the date of the letter the landlord sends listing the deductions he/she took from the security deposit. If the date of that letter is more than 14 days (not counting weekends and holidays) from the day you vacated, then the landlord has violated the Landlord-Tenant Act, and the amount of money the court gives you back from the security deposit will be accompanied by statutory damages equal to twice the amount returned to you. In other words, triple recovery! The determination about your security deposit will be made at a short trial before a Justice Court judge. If the landlord has a lawyer, don't go in without one. If you win, you are supposed to get attorney's fees and costs. The reality is that most Justice Court judges, who were not lawyers and do not know what it takes to put on a case, typically award less than your full attorney's fees. But even if you get no attorney's fees back, you need the lawyer to avoid the judgment that the landlord will otherwise get against you. And if he gets it, he will chase your wages and whatever else he and his lawyer can find forever.

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