When damage to a rental unit requires repair or replacement to restore the unit to a rentable condition, landlords are entitled to keep the security deposit from the vacating tenant to cover these expenses. Whether the landlord is entitled to keep the security deposit - or should return it to the tenant - is a frequent topic of dispute.

What can you do to avoid a dispute at the end of your lease and recover your security deposit in full? From the moment you move in until you hand over the keys, there are a few steps you can take to avoid forfeiting your deposit.

Move-In and Move-Out Inspections

Tenants should document all pre-existing issues including damage, deterioration, or other flaws to avoid being responsible for them at the end of the lease. If the landlord does not provide the tenant with a move-in sheet for this purpose, the tenant should make their own and support it with photographic evidence, providing a copy to the landlord within a few days of moving in. This record will be important should there be any allegations of damage later.

Within two weeks of vacating, the tenant is entitled to an inspection where the landlord can identify any issues. This provides an opportunity for the tenant to make repairs rather than forfeiting part of the security deposit. The tenant should also conduct a final walkthrough and take pictures or video of the vacant unit to serve as a record of the unit’s final condition.

Making Repairs During Tenancy

Tenants should promptly notify the landlord of any necessary repairs during the tenancy. Failure to properly report the problem may result in worsening conditions for which the tenant could forfeit the security deposit and be liable for additional repair costs under a claim of negligence.

What is considered normal wear and tear?

Whether a condition is caused by normal wear and tear or damage determines whether the landlord can keep the security deposit to cover the cost of repairs. The security deposit cannot be withheld due to normal wear and tear, defined as unavoidable deterioration such as worn carpet or peeling wallpaper/paint.

What is considered damaged?

If the unit is damaged during the tenancy, the landlord can apply the tenant’s security deposit to the cost of necessary repairs or replacement. Damage is a condition that is avoidable or caused by the tenant’s negligence, such as a burn in the carpet or a hole in the wall.

What should you do if your landlord does not return your deposit?

The landlord has twenty-one days after the tenant vacates to either return the security deposit or provide the tenant with a letter explaining why the security deposit is not being returned. If you have not received correspondence or a check from your landlord within this time, or if you disagree with alleged damage claims, your first step is to send a demand letter to your landlord. Demand the return of your security deposit and dispute applicable damage claims.

If the landlord is non-responsive or if you are otherwise unable to resolve the dispute, the next step is to sue the landlord for the return of your security deposit. You may be able to claim punitive damages if your landlord acted in bad faith, but this also opens the door for a crossclaim to be filed against you for damages above the security deposit.

If you have questions about the return of your security deposit, contact an attorney. The tenant attorneys at Schwimer Weinstein are standing by to take your call. Contact our office today and schedule a consultation.