Q: I moved out of my apartment last month, leaving it clean and without any damage. But I have yet to receive my deposit back. I now live several hundred miles away in another state. Any suggestions on how to get that deposit back? –Marc S.
A: Many states have strict rules on how landlords should collect and use deposits. These rules include the process of returning them when the tenant moves out.
Your first task is to find out how the state in which the rental is located regulates deposits. In brief, you’ll need to know if there are specific rules on allowable deductions (some states specify "how clean is clean," for example), how much time the landlord has to return the deposit, whether you’re entitled to interest, and the type of statement a landlord must provide when making deductions.
Importantly, find out whether your state requires you to leave a forwarding address with the landlord.
Next, contact the landlord again and ask that the deposit be returned. Do so in a "demand letter," which is a written letter sent "return receipt," in which you identify the rental address, the deposit amount, the date by which you should have received the deposit, and a specific request that the deposit be mailed to you at a stated address.
You should also include your plans should the landlord fail to carry through, such as suing in small claims court.
Now, suppose you do all this, but to no avail. The next step — suing in small claims court — will be quite inconvenient for you, because you’ll have to file your suit in the state in which the property is located.
You can’t ask someone local to do so on your behalf, nor can you expect that the matter will be handled in a webcast (with you in one state, the court in another).
Unscrupulous landlords who know that their tenants will be moving far away take advantage of this predicament, figuring that tenants won’t or can’t take the time to return and argue a lawsuit.
Fear that this will happen prompts some tenants to refuse to pay the last month’s rent and ask that it be taken out of the deposit, which is not legal but has the practical effect of reducing the amount of deposit held by the landlord at the end of the tenancy.
The only solution to this escalating mistrust is old-fashioned and hard-won: Trust on the part of the tenant that the landlord will act legally. That is earned only by reputation and the experience the tenant has while renting at the property. You won’t find this game played by landlords and tenants who have had fair and legal dealings in every other respect.
Q: My tenants just moved out, without notice and in the middle of their lease. They have been after us to fix the broken sprinkler system, and I’ve tried but couldn’t find the leak. I asked them to turn it off, and next thing I knew, they were gone. Are they responsible for the rest of the rent under the lease? –David and Teresa C.
A: The only legal justification for your tenants’ abrupt and midlease move-out would be a claim that by failing to fix the sprinklers, you’ve "constructively evicted" them. But I doubt that a judge would buy their argument.
Constructive eviction comes into play when landlords have failed to take proper care of the property, making it unfit for human habitation. Examples include failure to fix the only toilet, failure to supply heat or hot water, and allowing serious plumbing or rain leaks to go unchecked. Landlord lapses like these make it impossible to live safely in the rental.
Although the landlord has not locked the tenant out, he has indirectly done so, because a tenant cannot remain under these conditions. When that happens, the law views the landlord as having broken the law (evicted without proper steps), which in turn excuses the tenant from having to continue to honor the lease.
In short, the tenant is free to walk away, without continuing responsibilities under the lease (including the responsibility to pay the rent).
On the other hand, failure to maintain the property in less important ways cannot support a claim of constructive eviction. Not that these less serious landlord inadequacies are excusable, but the remedy for the tenant is less drastic.
When landlords fail to take care of business in ways that don’t lead to valid claims of "inhabitability," the tenant can go to small claims court, asking that he be given a reduction in the rent to compensate him for the landlord’s failure to deliver on a specific promise.
For example, your tenants might have sued for the difference between the rent that could be obtained for a property with a functioning sprinkler system and the rent of one without.
Your tenants’ apparent misuse of the constructive eviction remedy leaves you free to hold them to the lease. But in many states, landlords must make reasonable efforts to rerent, even though the tenants have acted improperly by leaving early. Once the property has new tenants, the old tenants’ responsibility for rent will end.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at firstname.lastname@example.org.
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