Apartment Exit Strategy, Part 2
March 1, 2007 8:08 AM Subscribe

Bob the Asshole, my old landlord, kept my security deposit.

This is the Part 2 followup to my original question. I'll summarize:

I had rented an apartment from Joe the Friendly Landlord. I signed a lease agreement with Joe the Friendly Landlord and paid him a security deposit.
Joe the Friendly Landlord sold the building to Bob the Asshole (not his real name, heh). Bob the Asshole eventually distributed new lease agreements, but I never signed one. I don't think Bob the Asshole knows that I never signed it.
I moved out, left the place in the same shape it was when I moved in, and Bob the Asshole kept my security deposit, roughly $1000.

His assistant told me, over the phone, that he's keeping the security deposit to cover three items:

Carpet needed replacing -- Indeed it did. It did before I moved in, as the previous owner had dogs. I actually complained about the spotted carpet several times. (Nothing in writing, though. grrr...)

Apartment needed repainting -- Nothing beyond normal wear and tear; the paint was cracked and generally lousy when I moved in.

Ceiling needed repair due to water damage from a roof that leaked during an ice storm. Water damage due to a leaky roof is not my responsibility. I asked Bob the Asshole twice to fix it. (But again, nothing in writing.)

For reference, here's a representative list of things a landlord can withhold for.

Unfortunately, I have no photographs or anything to document the apartment's original condition, and neither does Bob the Asshole. I know this because I had the only key to the deadbolt. But I do have a witness (former neighbor) that would probably be willing to testify on my behalf.

Essentially, Bob the Asshole remodeled the apartment at my expense.
.
.
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So... As much as I hate legal bullshit, I'm thinking it's small claims court time.

South Carolina rent law says the following (emphasis mine):

When you move out in South Carolina, you should give the landlord a forwarding address. The landlord then has 30 days to either return your security deposit or provide a written explanation of the amount withheld.

(a) Upon termination of the tenancy, property or money held by the South Carolina landlord as security must be returned less amounts withheld by the landlord for accrued rent and damages which the landlord has suffered by reason of the tenant's noncompliance with Section 27-40-510. Any deduction from the security/rental deposit must be itemized by the landlord in a written notice to the tenant together with the amount due, if any, within thirty days after termination of the tenancy and delivery of possession and demand by the tenant, whichever is later. The tenant shall provide the landlord in writing with a forwarding address or new address to which the written notice and amount due from the landlord may be sent. If the tenant fails to provide the landlord with the forwarding or new address, the tenant is not entitled to damages under this subsection provided the landlord (1) had no notice of the tenant's whereabouts and (2) mailed the written notice and amount due, if any, to the tenant's last known address.

(b) If the landlord fails to return to the tenant any prepaid rent or security/rental deposit with the notice required to be sent by the landlord pursuant to subsection (a), the tenant may recover the property and money in an amount equal to three times the amount wrongfully withheld and reasonable attorney's fees.

Here are my questions:

I never received any written itemized list of damages to the property, but I only gave my address over the phone (twice) when I requested the written list. I continued to check my old mailbox at the old apartment, and nothing was delivered there either. It's way past the 30 day point, but since I supplied nothing in writing, they may be able to claim they didn't have my forwarding address, which I'm thinking (?) may preclude me from collecting damages. (Here's an idea: Even though it's about 90 days after I've moved out, I could still send a certified letter requesting the itemized list. If they don't respond to that within 30 days, I've got Bob the Asshole by the short hairs...)

thinks

threaten

Should I just hire a lawyer? (Or is this too small-potatoes for a lawyer to deal with?)

Sorry this is so long, but there's my saga. Let it be a lesson to all tenants -- MAKE ALL YOUR CORRESPONDENCE TO YOUR LANDLORD IN WRITING. In retrospect, yeah, I should have just not paid the last month's rent... (And, yes, I enjoy typing "Bob the Asshole"!)

posted by LordSludge to law & government (31 comments total)

The lesson is indeed, always use your security deposit as the last month's rent. Good to see that you've learned it....

1a) Go ahead and send written notice to the landlord. Conduct all business with him in writing from now on. Write down, today, a complete history of the saga to the best of your knowledge, in date order, and keep it handy.

1b) A newly signed lease with Bob doesn't matter. The courts will hold that your old lease carries over to the new owner with the same terms and conditions.

2) You should do it yourself. You may be able to hire a paralegal for a few hundred dollars, but... I would just do it myself. This is not a case you're guaranteed to win, by any means, since you're lacking a lot of evidence to prove your case. It's basically your word against his, and the judge may believe him. If you do it yourself, at least you'd only be out time, filing fees and the deposit, rather than time, filing fees, legal fees and the deposit.
posted by jellicle at 8:23 AM on March 1, 2007

You had a month to month lease with Bob, since you had been living there without a yearly one. That doesn't matter for the deposit. You probably should just go to small claims. He can't prove you have done any damage. If you can get your neighbor to attend court on your behalf and maybe contact friendly landlord and get some statement about the condition of the apartment, you may be able to win.
posted by lee at 8:23 AM on March 1, 2007

Yes, he committed a fatal error by not putting it in writing; you should therefore win. (Of course, courts sometimes ignore the law; YMMV; &c.) You might start by writing a sternly written letter demanding your deposit back, stating for the record that (1) and (2) were like that when you moved in and that (3) is not your responsibility, and noting the lack of written notice. You might also send that to the original landlord — your contract is with him, and he might conceivably be on the hook too, so he might be able to put pressure on Bob.

Were I you, I would note that unless I received my full deposit back within 10 days (or something), I would be going to court, where I would be entitled by law to triple damages. Then I would send that certified letter, return receipt.

A lawyer might be worth it; I don't know. He might take a letter from a lawyer more seriously.

If you do go to court, be quick, be straightforward, and have the statute with you to show the judge. You might also try to get old-landlord to put something in writing confirming the shape when you moved in. He might dislike Bob too.

(IAAL, but this is not legal advice. I'm not licensed in South Carolina. I do not practice landlord-tenant law. YMMV.)
posted by raf at 8:23 AM on March 1, 2007

You might ask around and find out what the reputation of the landlord-tenant court (or other relevant court) in your jurisdiction is. There are places where they are notoriously and gloriously biased in favor of tenants. If that's the case, (1) Bob will probably know, and (2) you will have more leverage.
posted by raf at 8:25 AM on March 1, 2007

This pamphlet has a number you can call for advise.
posted by lee at 8:31 AM on March 1, 2007

You should read the entire residential landlord tenant act (and never rely on the type of site that you linked to). This section answers your question about the unsigned lease:

SECTION 27-40-320. Effect of unsigned or undelivered rental agreement.

(a) If the landlord does not sign and deliver a written rental agreement which has been signed and delivered to the landlord by the tenant, acceptance of rent without reservation by the landlord gives the rental agreement the same effect as if it had been signed and delivered by the landlord.

(b) If the tenant does not sign and deliver a written rental agreement which has been signed and delivered to the tenant by the landlord, acceptance of possession and payment of rent without reservation gives the rental agreement the same effect as if it had been signed and delivered by the tenant.

Also 27-40-410 allows you to collect treble damages and attorney's fees for wrongfully withheld security deposits, so I think that a hungry young attorney would be more than willing to take your case. Use the South Carolina Bar's attorney referral service.

Finally, I am not your lawyer and this is not legal advice.
posted by ND¢ at 8:36 AM on March 1, 2007

I never received any written itemized list of damages to the property, but I only gave my address over the phone (twice) when I requested the written list. I continued to check my old mailbox at the old apartment, and nothing was delivered there either. It's way past the 30 day point, but since I supplied nothing in writing, they may be able to claim they didn't have my forwarding address, which I'm thinking (?) may preclude me from collecting damages. (Here's an idea: Even though it's about 90 days after I've moved out, I could still send a certified letter requesting the itemized list. If they don't respond to that within 30 days, I've got Bob the Asshole by the short hairs...)

This is almost exactly what I did. Successfully.

Express your strong concerns over not having recieved the the monies owed to you. Note that you did not receive a list of damages within 30 days (or indeed, at all) and therefore you expect your deposit to be returned in full. Send it certified. Give them a reasonable due date -- the check must be in your hands no later than 10 business days from [date of letter] or you will be forced to pursue legal options.

(I hadn't supplied my address in writing either -- I had given it verbally several times. I'm also in the white pages, and my phone number didn't change. No need to note this in your letter, but remind yourself of all the reasonable ways that you could be found in case this actually goes to court.)
posted by desuetude at 9:00 AM on March 1, 2007

ND¢ says "Also 27-40-410 allows you to collect treble damages and attorney's fees for wrongfully withheld security deposits" You probably won't get triple damages, it's just not done, round here (chicago) anyway.
posted by lee at 9:00 AM on March 1, 2007

Sounds like your understanding is correct - definitely read through ND¢'s link to the actual ordinance.

Don't get a lawyer, you'll spend more money than you'll get out of it - that's why small claims court exists. Send the landlord written notice that because he did not provide itemized deductions to your security deposit within 30 days as required by law, you expect to receive the full security deposit back immediately. Make a copy of the letter. If he does not refund it within a week or two, file in small claims court.

I did just this after my last lease - in that case my landlord read through the ordinance, realized I was right, and wisely decided to just send me the refund.

To be honest I've never heard of bad court experiences in cases like these - and I've known quite a few people that have had to do it. These laws are very specific for a reason - there are unfortunately many unscrupulous landlords out there who will try to screw you for every penny they can get, and this is especially common with security deposits. The landlord can either 1) follow the rules to the letter when deducting repair costs, or 2) return all of your money. If they try anything else (which it sounds like Bob is doing), the court will almost always award you some multiple of the original amount as defined by law. They're generally VERY strict about penalizing bad landlord behavior - no city wants their housing market overrun by unscrupulous landlords.
posted by chundo at 9:08 AM on March 1, 2007

Yea, you should make the demand and note the 30-day period, but you should *not* give him a *new* 30 days. There's no reason to be so nice.

I don't think the lack of a lease is particularly relevant. His obligation to return the security deposit doesn't come from the agreement; it's implied in law.
posted by raf at 9:08 AM on March 1, 2007

Yeah, use your security deposit as your last month's rent. If you want to guarantee that the apartment manager is going to charge you $10 to fill every nail hole from every picture you ever hung, and come up with hundreds of dollars in cleaning fees she would otherwise not worry about. Oh yeah, and then she'll send the information to the big credit reporting agencies, who will propagate the information for 7 years. So go ahead and do that, as long as you don't anticipate needing rental housing for the next 7 years.

The moral of the story is that it is best to send things in writing. And keep a copy for yourself. And always always always fill out hat "move in disposition" form and make a copy to keep with your lease. And sad but true, view a security deposit as non-refundable until proven otherwise. You can then consider it "found money" if you actually get it back.

As long as Bob the Asshole did not send you an actual bill for "damages" over and above your security deposit amount, walk away. It sounds to me like he was looking for excuses to keep your money, and truth be told I would be surprised if he kept the security deposit money in a separate bank account -- which means he may not even have the money to send you. The last property I worked on *did* have a separate bank account, and *did* refund deposits when appropriate. Not everyplace does. If you do go to small claims, you won't need a lawyer. That's part of the point of small claims. Make sure you bring as much documentation as you can muster. And don't count on being awarded the treble damages even if you do somehow get a judgement. Likewise if you do get a judgement don't count on him paying up! Mostly, do this if you would like to annoy Bob the Asshole. I can see where this would be satisfying, make no mistake! But it will also take a lot of your time and some money in court filing fees.
posted by ilsa at 9:20 AM on March 1, 2007

This new landlord never did a NEW walk through to establish the condition of the place right? Good for you, bad for him.

Play that up all the time, can you go back there and film or photograph the place? Even if the exact conditions are not as you left them it will greatly help a judge see the tone of the place and such. Photos do not permit spin.

Take pictures of other areas too, trash , stairs, lobby etc so if the landlord comes arcoss like this is some wonderful place and you are a slob then whip out the photos to show the court what is what.

good luck.
posted by Freedomboy at 9:33 AM on March 1, 2007

Were I you, I would send him a written request via certified mail saying it's been over a month, you left the unit in the same condition as it was when you took occupancy, and you'd like your security deposit returned immediately and in full. Here's an address he can mail it to.

Period.

I would never never NEVER do his legal work for him by citing state law and explicitly stating what he's obligated to do if he wants to keep your deposit. Why would you help him that way?

AFTER you have the return receipt in hand and AFTER he has failed to respond appropriately THEN send him a letter stating you intend to sue and providing him 7 days to remit.

Once that happens you can draft your small claims court complaint - nolo.com is your friend - and send it to him stating he can rectify the matter within 24 hours or you'll file it. Make sure the claim is for the full amount allowed for by law.

As someone above said, the court doesn't always follow the law. Sad but true. So don't set him up with information such that he can walk in there partially compliant - ie, sending you the written itemization, albeit late. If he's too stupid to know the law then don't educate him.
posted by phearlez at 9:47 AM on March 1, 2007 [1 favorite]

Good suggestions, everybody. Now that I'm feeling more confident in my position, I must admit it's a bit fun to strategize my next move.

Do I just try to get my security deposit back? (Cite the law, threaten to sue, etc.)

Or do I position myself for a lawsuit and possible triple damages? (Don't tip my hand that I intend to sue. Instead, build documentation on his non-compliance. "Give him enough rope to hang himself.") I'm not a big fan of lawsuits, but this guy's been a bully to a lot of tenants, so I wouldn't mind taking the wind out of him.

Hmmm...
posted by LordSludge at 9:59 AM on March 1, 2007

I had a similiar problem last year. My old landlord went over the due date, gave me part of the security deposit back, I took the steps to appear in front of a local housing board, refused them when they offered to pay all of the security deposit in full, and wound up with an extra $5 (the interest on the S.D.).

I don't think you'll get anything extra, no matter how airtight things look. I figured that we wouldn't get anything extra but I also wanted to waste as much of their time as possible, so it was worth it to me in the end.

I say send the certified letter asking for all of the money back by a certain date and when that date passes, take them to court. Small claims courts can take a while so you might want to consider starting the process now and canceling it later if need be.

Also, my city has a special housing board for cases exactly like this so that the court doesn't get clogged with them. Do some research and see if your city has anything similiar.

Good luck!
posted by Diskeater at 10:20 AM on March 1, 2007

I'm not a big fan of lawsuits, but this guy's been a bully to a lot of tenants, so I wouldn't mind taking the wind out of him.

Don't go to court with any other purpose than getting what you're due. It's a waste of your time and a recipe for disappointment and expense.
posted by phearlez at 10:27 AM on March 1, 2007

Just try to get your security deposit back. Anything else would be setting yourself up for a costly failure.
posted by ND¢ at 10:34 AM on March 1, 2007

Not to derail, but what are the ramifications of using the deposit as the last month's rent as a safeguard?

(I ask only because I know our landlord is desperate for cash and almost certainly commingled our money with his, violating NYS law. He probably intends to scrape together some funds for us after we leave, if anything.)

Has anyone actually done this? With what levels of success and/or friction?
posted by thejoshu at 10:46 AM on March 1, 2007

i was in a very similar situation a few years ago. ended up in court. the landlord attempted to send me stuff after the 30 day deadline, but i had the postmarked letter to prove it was sent only after i demanded full payment. got all of my money back + costs.

your only problem is that bob might change the reasons for why he held your security deposit.
posted by lester's sock puppet at 10:50 AM on March 1, 2007

The security deposit is not prepaid rent, and tenants are not generally entitled to apply it against rent without the landlord's permission.
posted by Mr. President Dr. Steve Elvis America at 10:56 AM on March 1, 2007

Tehjoshu,

Speaking as someone who knows the apartment management industry, don't. Yes he probably intends to screw you, but screwing him first won't help (and will make a court look unkindly upon you if you end up there).

Instead, approach management nice and friendly when you submit your notice to vacate in writing (check your lease for requirements, usually 30 days). Include in that letter a request for cleaning guidelines to insure getting your deposit back in a prompt fashion, offer two specific times when you will be available for a move-out disposition walk through (bring a digital camera with you and document stuff while you do it; if management can't/won't walk the unit with you then document without him once all your stuff is out), and if there's absolutely anything maintenance that needs to be done, put that in the letter too. That way it's his fault it isn't repaired, not yours.

Basically, scare the asshole into coughing up what he owes you.
posted by ilsa at 10:59 AM on March 1, 2007

Just try to get your security deposit back. Anything else would be setting yourself up for a costly failure.

That's a disappointing if that's how this works in process; it gives the landlord every incentive to stiff the renter, with no penalty for when he gets called on it. The law is specifically written to discourage and punish this behavior, but the courts don't enforce it??
posted by LordSludge at 11:01 AM on March 1, 2007

Or do I position myself for a lawsuit and possible triple damages?

I briefly considered this, because I was furious at how the situtation unfolded. In the end, I had to acknowledge that this impulse was driven by greed, and decided to take the high road.

I did threaten to take the landlord to court for the amount owed plus filing and court costs plys the extra $ in credit card interest that my roommate and I paid when we had to use credit instead of the over $700/each we expected to have in our pockets.

(She sent us a check for just what she owed us, no more or less.)
posted by desuetude at 11:01 AM on March 1, 2007

Just try to get your security deposit back. Anything else would be setting yourself up for a costly failure.

That's a disappointing if that's how this works in process; it gives the landlord every incentive to stiff the renter, with no penalty for when he gets called on it. The law is specifically written to discourage and punish this behavior, but the courts don't enforce it??

Yes someone has to be there to enforce their rights in court when landlords don't obey the law but YOU DO NOT WANT TO BE THAT PERSON. Court is costly, time consuming, and a huge pain in the ass. Also, in the great state of South Carolina, Magistrates (judges in small claims court) don't have to be lawyers. You may get a good guy, or you may get someone who was a landlord for twenty years, doesn't know shit about the law, and just happens to be buddies with a State Senator. Therefore, even if you had all the facts on your side, which does not appear to be the case because of your lack of documentation, you may not win. Then you have lost your filing fee and the day of work you had to take off and a lot of worry. Try your hardest without going to court to get just the money you are owed back, if you do then count yourself lucky, and if you can't then go to court to do it. But don't go looking for a lawsuit, treble damages or no.
posted by ND¢ at 12:10 PM on March 1, 2007

I've recently been through something like this, although I haven't done the small claims court thing yet. Here's my advice:

1. Send the certified letter requesting the security deposit. Do not inform them that "state law requires blah blah blah" or anything of the sort.
2. Do nothing for 90 days. Do not follow up.
3. File a small claims lawsuit.
posted by electroboy at 12:59 PM on March 1, 2007

I had a pretty good experience suing my ex-landlord for my deposit in small claims (wound up getting more than I asked for), but looking back on it now, and after having talked to some other people about it, I was really lucky. A lot of things could have gone wrong, since I was pretty stupid and greedy - didn't think some things through. If my landlord hadn't helped me out by 1) offending the judge and 2) not raising a finger to document any of his claims, I could have come out of there with nothing. And that's assuming the judge was the same tenant-favorable guy I had. It could have been much worse, and I could have been hit for a countersuit for the damages that he alleged. All in all, if there is a next time, I would prefer not to take the risk.

However, once we won, since we knew where he banks, getting the actual cash was pretty quick and painless. I don't know if his mortgage company got their payment or not, but we got ours.
posted by pamccf at 1:23 PM on March 1, 2007

Is ND¢ possibly a landlord? S/he's spewing an awful lot of FUD.

How exactly does small claims court turn "costly?" I have been through this exact situation and I had no trouble receiving statutory (triple, here in California. I can't imagine that the legal system there is world's apart) damages when the landlord did not provide an accounting and balance within the legal timeframe after moving out.
posted by rhizome at 1:33 PM on March 1, 2007

The lesson is indeed, always use your security deposit as the last month's rent.

That is a really bad lesson to learn. In some states, this will allow the landlord to sue you for three times the amount withheld. So always check on your state's laws first. Yes, in South Carolina it looks like this is okay at first glance, but people in other states need to consider this.
posted by grouse at 2:10 PM on March 1, 2007

What grouse said on the matter of using your security as the last month's rent, there are other reasons not to do this as well. In every state I have lived in (MO, NY, CT, WA, IL) doing this would violate the terms of the lease. This exposes you to plenty of problems you will not want to have. If you vacate without doing a walk through, the landlord can come after you for additional damages of his creation. It might not cost you out of pocket, but will likely affect your credit rating if he wants to submit for collections.

Also, when/if you want to buy a house, it's always good to have landlord references to present to the banks.
posted by psmealey at 2:32 PM on March 1, 2007

I disagree with a lot of the above advice about not citing laws, not giving warning, &c. Your goal is to get him to give you money without you going to court. A letter that uses legal citations and is very formal-sounding and makes explicit threats to sue does two things: (1) it indicates you know what you are doing and will stand up for your rights, and (2) it educates him that he has no legal ground to stand on. Both of those things make him more likely to pay up without going to court.
posted by raf at 7:54 PM on March 1, 2007

The problem is that if I advise Bob the Asshole of the law, and he *still* declines to pay back the $1200 (I looked up the exact number last night), then he now knows the holes in his case that he will need to defend against. He has plenty of opportunity to establish his own documentation and get his legal ducks in a row in anticipation of a lawsuit -- perhaps even prepare a countersuit of some concoction. And I can totally see Bob the Asshole, a prominent local businessman & restaurant owner, sicking a high-end lawyer on me if he thinks I'm trying to compare dick sizes with him.

I think I'm going to basically go with phearlez's suggestion.

Thanks for the suggestions and discussion!
posted by LordSludge at 9:13 AM on March 2, 2007

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Apartment Exit Strategy, Part 2 March 1, 2007 8:08 AM Subscribe

Apartment Exit Strategy, Part 2
March 1, 2007 8:08 AM Subscribe