Tuesday, September 12, 2006

Getting your rental deposit back

My friend gets jammed up a lot. In July it was over his deposit on a residential rental that he shared with some roommates. The landlord stopped by two days before their lease expired to express some very demanding expectations about how her crummy little shack should be returned, otherwise it was coming out of their deposit.

Landlord's list of intended charges included:
  • the brown, unwatered sections of lawn
  • replacing dead landscaping bushes
  • edging and weeding
  • professional carpet cleaning in a damp sub-basement!
  • scrubbing stains out of 60 year old grout with particular cleaning products
  • replacing a stolen freezer

My friend knew this list was going to mean a large chunk of their $1,000 security deposit would be missing when they got it back. The landlord even hired a lawn psychiatrist to come over and pad the bill with exotic plant examinations. So I was asked to be there as a mouthpiece when the landlord returned to check on cleaning progress.

I did, and let her know (in the most helpful and innocent manner) that she really couldn't deduct a thing from the deposit because 1) the property is in the same condition now as it was when she rented it to them, and 2) she never did a written "check-in" sheet documenting the original condition, and without it, the law is not on her side for making deductions from the deposit.

We went back and forth, her pointing out some alleged damage, my saying it was like that when they moved in, her saying it wasn't, and my asking then for the move-in condition of that item on the non-existent "check-in" sheet.

After some tense moments, she left. Then I went to the library to write a pre-emptive letter for my friend to get the landlord to see why I was right and she would have to give back the whole deposit. It's included below, and you may copy it freely for personal use in saving your own security deposit from greedy slumlords.

A couple of weeks later, my friend received a refund from the landlord minus just one deduction, $149 for the landlord's freezer that was stolen from the garage earlier in the year. I'm certain that without my first letter laying out the legal analysis, there would have been many more deductions.

That last $149 still bothered him because he believes the thief was the landlord's son, or someone to whom the landlord gave keys, and because they also stole gear from his truck the same night. So it was up to me to secure return of that last amount, and I had reserved some of my ammo for just such an occasion.

Here is my second letter to the landlord, wherein I prove that white is black, and black is white, according as I am paid. You may freely copy it for personal use in recovering your own security deposit.

(I should also metion that between these two letters, I laid a small trap for the landlord should she have made any deductions for cleaning. Montana law states that before any cleaning charges can be deducted from a deposit, the landlord must give the tenant 24 hours to perform that cleaning himself, in order to avoid charges. I knew that she had already promised the house to another tenant on the same day my friend's lease was to expire, and that even if she knew about that statute, she would not have wanted to go through the inconvenience of following it. If she didn't follow it, then any charges for cleaning would have been easy to recover in court, plus additional damages for intentionaly disobeying the law. In any case, this landlord never made a deduction for cleaning charges.)

The day before my deadline given in the second letter, my friend received this from the landlord, along with a check for $149.00.

I am in receipt of your letter dated August 23, 2006 stating that the freezer was taken from a locked garage, yet you stated to me last fall that the garage door was not locked and that you did not report the freezer theft to the police. Therefore, the freezer theft was due to your failure to lock the garage, and amounts to damage. The refrigerator you offered to leave behind did not include a freezer with similar capacity to the lost freezer. A judge with common sense would agree that you are responsible for the replacement freezer cost. Be that as it may, it is not worth my time to further address this matter, and am enclosing a check for $149.00, the cost of the freezer which was withheld from the deposit.

It's clear from her letter that the landlord still thinks she's right about the freezer, but probably sees that she is wrong about everything else and therefore won't take her chances in court.

Granted, my friend should not have told the landlord that he left the garage wide open, and I wish my friends would consult me by cellphone before making damaging public statements. However, even allowing that he might have left the door open, we would need to debate whether that consituted any comparative negligence in a quiet Missoula neighborhood, and even if it did, my friend's omission was not the proximate cause of the freezer being stolen. The superceding and intervening cause of it's loss was solely the intentional act of an uninvited trespasser. Such a criminal act would break any chain of causation caused by acts or omissions of my client, and render my client not legally responsible for the loss.

An uninvited trespasser could have just as easily set the whole garage on fire, and by the same reasoning, the landlord would not be able to charge the smoking pile of debris against my friend's deposit.

Though there's a small chance she's right about the freezer (very small, don't bet on it), she's almost certainly wrong on the other items mentioned in my second letter which could cause her losses upwards of $3,000.00. That's why it's good to have many arguments, as long as each is strong.

Since this landlord also happened to be a (non-practicing) lawyer, she could recognize her risk, and also her disadvantage in being held to a higher standard regarding knowledge of landlord-tenant law.

If your landlord is just some old codger who doesn't consult lawyers and goes on just as he did in feudal times before tenant protection laws existed, then you might really have to sue him. And you should. It will help improve the quality of landlords and their business practices in your area.

Actually, I am sad that Landlord did not take us on. I was looking forward to splitting the take with my friend, 90% for me and 10% for him.

1 comment:

  1. I'm sure the landlord does very well on those who aren't prepared to agressively defend their rights.