Landlord is illegally keeping our security deposit - Michigan edition

August 14, 2016 10:21 PM

We left the house in better condition than when we arrived - but the landlord is blaming us for preexisting damage. He missed the deadline to return our deposit, so shouldn't be entitled to any of the money. But now what?

YANML. I have read previous questions, but snowflakes!! (Sorry for the wall of text, trying to avoid follow-ups)

We moved across the country to Oakland County Michigan last July. We tried to find a rental house without flying here to look, and it ended up being a mistake. The house was disgusting and really outdated - carpet was badly stained and stunk when it rained - the landlord was really lackadaisical about everything. It was not a match for us, but we stayed out our lease.

We did not take pictures of the property when we got there. We have many excuses but the fact is we dropped the ball on this, and we know this is our fault. We did mention to the landlord when we saw him in person in late July 2015 that the carpet was stained and smelled, but that we hadn't done a formal walk through. He said it was no problem and acknowledged the condition of the carpet.

Our lease was up June 30th, but we had the house clean and vacant June 26th and put the keys in the same lockbox that he used when we moved up. I emailed the landlord that afternoon, said he'd go by in a few days to check the condition. He asked for our new address again (even though we sent it via Certified Mail with our final rent check) which I provided that day.

We didn't hear anything from him for over a month. On July 29th, I emailed him to check in. He sent a cordial email in response, but notified me that he would be keeping 2/3 of our deposit because "your cats apparently used the carpet as their litter box." We do have cats - they are middle-aged cats who don't urinate everywhere. We are maniacal about keeping their litter boxes clean, and if they ever did have an accident (maybe 2x a year), we have a treatment to take care of it. We have never lost a dime of security deposit despite renting many times over the last 10 years.

I didn't respond to him and I called an attorney. The attorney chuckled and said, "He can't do that." Because he didn't itemize damages, didn't say the phrase he's supposed to include about "You have the right to dispute within 7 days", and didn't do any of this within 30 days of move-out, he now doesn't have a right to withhold any of the deposit. The attorney also said it wasn't ideal that he didn't do any of this via physical mail. I double checked the lease we signed and it also has the verbiage about "within 30 days of move out" the funds and itemized list would be in our hands.

We emailed the landlord back on July 31st and let him know what the attorney said in a non-emotional way. We disputed the cat damage for the reasons above. We reminded him of the conversation in late July of last year.

August 1, we received a check in the mail for the amount he said he would be returning (1/3). No itemized damage list. No mention of disputing within a week. In fact, he wrapped the check in a blank piece of paper. (August 5, I sent a Certified Letter disputing his claim to any damage. Even though he didn't do the right thing per Michigan law, I thought it wouldn't hurt to do the dispute.)

On August 4, we received a nasty email response from landlord accusing us of playing games. Saying that the prior tenant would testify to the condition of the house. Saying that email is legal for this interaction (ignoring the fact that he still didn't itemize damages or give us the right to dispute within 7 days). Saying that he's taken plenty of tenants to court and he will win this time!!! But, offering to return about another 1/3 of the deposit (meaning he would only keep 1/3 instead of 2/3) to "end this right now."

We worked with the lawyer on a demand letter after forwarding all his emails to her (and he would have received Thursday 8-11). Now we are over 45 days without getting our money back. This was mentioned in the letter from the lawyer - in Michigan, if we don't get our full deposit back within 45 days, we are supposedly entitled to 2x the deposit.

So... now what? The lawyer's letter demanded the immediate return of our full deposit. We have not cashed any check from him. We have no outstanding rent or utilities, paid everything via check (including deposit to him). What are our chances in small claims? What are our chances in small claims given that we have no photos of the residence when we moved in? We are not currently represented by that lawyer - the letter was a courtesy, but we would have to formally hire her if we do anything other than Small Claims. Honestly, all we want is our full deposit back and to be done with this, but if we have to go to court we will sue for 2x.

posted by anonymous to Law & Government (14 answers total)

A friend of mine went through this exact same thing a number of years ago, in Michigan. He took his landlord to small claims court and was awarded twice his security deposit, which the landlord paid. It was pretty straightforward, as I recall—a single hearing. The landlord's failure to return his security deposit by the required date was, IIRC, the only issue the court considered.

Are you in Oakland county? The county has an info page on landlord-tenant proceedings you may find helpful.
posted by not that girl at 10:51 PM on August 14, 2016 [10 favorites]

I went through this same sort of shit in 2012 in Seattle. Our LL withheld almost all of our security deposit, and didn't communicate in a timely fashion that he was required to do under the law. The judge found in the LL's favor despite the fact that the LL just pulled some numbers out of his ass for the claimed repairs. He had no receipts and couldn't even remember which companies he had supposedly hired. He claimed to have sent us a letter about the security deposit within the legally mandated time period, but (if he sent it at all) had sent it to our old address. WA state law requires proof of delivery, either by handing the letter in person or return receipt. Despite those legal requirements and despite the fact that the LL had absolutely zero to back up ANY of his assertions, the judge found in his favor.

After that shitty experience, I read up about security deposits and legal cases. There is a metric ton of folks who have been screwed out of their deposits in court.

We spent a bunch of money to serve the LL (bastard was impossible for the first process server to even find), and would have spent more to appeal, which we didn't do since we didn't want to lose more money and it was clear the system was rigged. We also wasted a bunch of time preparing for the case.

I too had the delusion that a judge would be impartial, fair, reasonable, care about upholding the law. No, no, no, and no.

Maybe you live in unicorn land where court is a place for fair decisions. But be prepared to be sorely disappointed, especially if you are not solidly upper class. Judges often side with the LL because the see the LL as a fellow well-to-do person, and the renters as the peons.

All that to say, in your situation, I would keep what money I did get back, save my time and sanity, and let it go.
posted by mysterious_stranger at 12:56 AM on August 15, 2016 [3 favorites]

This is an absolutely cut and dry case. You could have trashed the place and the law says you're entitled to your full deposit back because he didn't give you the itemized list of damages within the timeframe specified by law. However, mysterious_stranger's account is not the only anecdote I've seen on the green where a tenant has had a slam dunk of a case and the judge found in the LL favor :(

How much is actually at stake here? How far are you willing to take it? Are you willing to appeal if a judge finds against you? Are you willing to take it to the media if the judge blatantly ignores the law?
posted by missmagenta at 1:11 AM on August 15, 2016 [1 favorite]

Mysterious_stranger doesn't mention having a lawyer. You do.
posted by amtho at 1:55 AM on August 15, 2016 [4 favorites]

I took a landlord to small claims court for basically the same thing (in LA). I won the case. The landlord didn't pay me...but then several years later he was pulling out all the stops, desperate to pay me. I never found out for sure why, but I imagine it's because the judgment was showing up in some manner that was either hurting his credit or making it impossible for him to sell the place. YMMV.
posted by BlahLaLa at 7:00 AM on August 15, 2016 [2 favorites]

Take them to small claims court, which generally don't allow lawyers. The lawyer may be willing to give you advice and help you prepare your documents before you go.

Maybe you live in unicorn land where court is a place for fair decisions.
Many people have successfully used small claims court to get their deposits back. Just because it did not work for one person does not mean that the system never works.
posted by soelo at 7:21 AM on August 15, 2016 [2 favorites]

Do you have someone other than the tenants who saw the condition of the apartment around the time you complained to the landlord and could provide testimony about it? Did the landlord tell you by email that he acknowledged the condition of the carpet? If you have either of those things, your chances are excellent. If the statute is as clear as the lawyer says it is, your chances are still good.

It's worth pursuing. I can't promise you that you'll win, but if you can scrounge up something that shows that you didn't cause the damage, it would help your credibility. Even if you can't, I would still go forward because you know you didn't cause the damage and he's not behaving ethically.
posted by *s at 8:33 AM on August 15, 2016 [1 favorite]

If a lawyer makes the difference between the judge accurately ruling on the law, then that absolutely underscores my point about prejudice towards those with little money.

The whole concept of small claims court is that a regular citizen is supposed to be able to bring suit without a lawyer or complicated legal crap.

I don't know how much the OP's security deposit is, but lawyer's fees could absolutely end up higher than that. And contrary to popular belief, you are not always entitled to recoup those if you win.

I involved a lawyer many years ago when a larger sum was involved, and got paid without going to court, but I did not recoup what I spent for the lawyer. And the whole process was lengthy and extremely frustrating.

I am by far not the only one who has had the poor experience taking a landlord to small claims court. I read about a ton of people in Seattle who had the same type of what should be a slam dunk case, only to get steamrolled.

If I had it to do over again, I just wouldn't. I know what I experienced and I'm not just some rare fluke case. The story about how small claims work does not match the reality for many people.
posted by mysterious_stranger at 11:20 AM on August 15, 2016

Are you going to pay the lawyer more than 1/3 of the security deposit?

If yes, take the 2/3 total from the landlord and call it good.

If no, or if you'd much rather give the money to the lawyer, take the landlord to court.
posted by bile and syntax at 12:43 PM on August 15, 2016 [3 favorites]

I did this and didn't have to pay the lawyer. His fees were taken out of the settlement which included paying me back double the security deposit, plus both lawyers fees. In fact, the check just came from the lawyer about a day after it was settled. If it's as cut and dry as you make it sound, you should be able to find a housing lawyer that won't take payment if they lose. It's pretty common. I tried to do it without a lawyer and the landlord basically told me to fuck off. Expensive mistake on his part.
posted by mike_bling at 12:43 PM on August 15, 2016 [4 favorites]

Nthing that the issue will be one of timeliness of return for the deposit.

If you were in the house for at least a year with pets, had the landlord been in the house at any time and complained about the carpets? If not, use that to your advantage.

Also, carpets in rentals generally have a lifetime of 3-5 years. That was a factor in favor of a friend getting their deposit back even though they had cause additional damage in the form of wear and tear on the older carpet at the entry way and transition points.
posted by BlueHorse at 11:16 PM on August 15, 2016 [1 favorite]

Additional options should you choose to pursue the security deposit include:
* Depending on your income level, look into legal aid.
* Find an area tenants' union or tenants' rights group to back you, or start one. Get some local media attention on your case, and have a number of (well-dressed, if possible) supporters attend your small claims court hearing. In other words, don't antagonize the judge or adjudicator hearing your case, but make it clear that people are watching.
posted by eviemath at 6:12 AM on August 16, 2016

Update from the anonymous OP:

The disputed amount is about $900. If we were to get 2x the deposit, that's almost $2600 total.

Yes, I would rather pay the lawyer than have this abusive landlord keep one dime (you know, within reason). I'd rather just try Small Claims, though.

I will look into housing lawyers that work on contingency. We are probably not eligible for free legal aid.

Landlord did not acknowledge anywhere on email or via text the condition of the carpet. We similarly did not document this anywhere to each other or anyone else. It's like a black hole!

Members of my family did walk through the house before we signed the lease. I will find out how much attention they paid to the carpet.

Landlord did not once walk through the house to inspect it during our stay. Also, we paid $30/month pet rent, if that matters.

I know the prior tenant lived there for 3-4 years, so that's an interesting tidbit into the life of the carpet.

Thanks to everyone for the helpful responses. We have a ton to think about.

posted by LobsterMitten at 8:58 AM on August 16, 2016 [1 favorite]

If there is anyone who was in the unit earlier in the year who remembers the carpet, or who can compare the carpet condition at the end of the year to the beginning, they can make an affidavit (signed in front of a lawyer or notary - exact requirements vary by state) that you can enter into evidence in court. Though in-person testimony is generally given more weigh if I understand things correctly.

Ideally the case will be only about the fact that the landlord didn't follow required procedure for keeping the security deposit, and required procedure is required. If you go to small claims court by yourself, try to keep that the only issue, and try to keep the landlord from introducing unrelated arguments. But have as much documentation about the actual state of the carpet as you can get, as well.

Another useful thing to keep in mind: courts should only award landlords an amount from the security deposit for costs actually incurred. So if your landlord can't produce evidence that a professional looked at the carpet, agreed about persistent odors, and actually did extensive carpet cleaning or replacement, then the landlord shouldn't be getting any money. Also, the landlord can't double-bill you for both cleaning and replacement.

There are some online search services (findlaw, westlaw) for looking up relevant caselaw in your state to support your arguments. It's best to have a lawyer help you prepare your case, even if they don't represent you in court, but you can also look stuff up yourself.

Courts don't always view awarding of security deposits in the same light as one person suing another person for money. A security deposit is the tenant's money, so to get any of that money, a landlord should follow a legal procedure, otherwise they are stealing (whether they might otherwise be legally entitled to the money or not) - but that's my personal opinion, not legal doctrine. Possibly that could be a useful point to make in your opening and closing arguments, though.

If Michigan is like other jurisdictions I'm more familiar with, your case will be one of several on a docket during a court session. The judge or adjudicator (where I'm currently living, it's just random local lawyers, not judges) will want to get things processed as quickly as possible, so try to be complete but succinct. Let the landlord be the annoying one "wasting" the judge or adjudicator's time.

As the person making a claim, you'll get to speak first and present your case and give testimony. Your landlord will have the opportunity to question you. Then if you have any other witnesses presenting testimony, they would go next, and the landlord would get to question them. Then the landlord gets to testify/defend themselves, and you get to ask questions. And then the landlord can call witnesses, and you can question them. In this case, it seems unlikely that either of you would have witnesses, and really, the main argument is that the landlord isn't entitled to any of the security deposit because they didn't follow legal procedure, so calling any witnesses to the condition of the carpet may be a bit of a gamble that would distract from that main point. (This is where getting a lawyer's advice in building your case would be handy.) If you're submitting any documentary evidence (and you should), make three copies: one for you, one for the court, and one for the landlord. Organize everything in a binder, with all documents indexed and clearly labelled. Your landlord also needs to provide copies of any evidence he is submitting to you, and you are entitled to the opportunity to review it and respond. You can object if the landlord tries to introduce anything irrelevant to the case. You and your landlord should also each get the opportunity to respond to the others' testimony in some sort of closing argument or summation, as well.
posted by eviemath at 9:42 AM on August 16, 2016 [1 favorite]