Rentwise! Chapter Four -- Damage Deposits

YOUR DAMAGE DEPOSIT . . . YOUR DAMAGE

One of the promises that you make when you rent an apartment or a house is not to damage it, either deliberately or out of inattention and neglect. To do so could be cause for eviction and lawsuit.

Most landlords require a security or damage deposit—often in the amount of an extra month's rent—to cover potential damage to the unit. Get a signed and dated receipt for your deposit, and be sure it is written into your lease. Tennessee law requires the landlord to tell you where this money is banked in a special "escrow" account. If you, your children, and guests take good care of the unit, the hallways, and other common areas, you are entitled to return of this deposit, even if you live there for many years.

If the landlord sells the building, your lease will remain in effect and the damage deposit should be transferred to the new owner. Stay on top of things. Ask in writing if the new owner will take possession of the escrow account. Make a dated note of the response for your file. Both owners can be held jointly liable if you must sue to recover the deposit.

If you break your lease you will probably forfeit your deposit. Even if you notify the landlord and leave your place spotless, leaving before your term is up will cost you. Read your lease carefully! Pet and cleaning fees are non-refundable regardless of damage.

WHAT IS DAMAGE . . . AND WHAT IS NOT

Tennessee law specifies that the tenant is responsible for damage to the unit, but is not responsible for "normal wear and tear." This gray area is where many disputes arise. Sometimes it is hard to tell the difference. The landlord definitely should not deduct from your deposit for cleaning or repainting (unless your lease says so) or for ordinary repairs such as loose hinges, leaky faucets or minor scratches or spots.

Landlords (and judges, if it winds up in court) look at both the extent and the cause of the damage. If you were so careless or neglectful that you caused or aggravated the problem, you'll probably pay for it. Also, if you violated specific lease provisions regarding certain damages (such as nail holes), they are likely to be deemed "damage".

Generally, landlords with new or well-maintained units will be more particular about the way you treat their property. They notice the little things, and are very sensitive about the cost of repairs. Expect to be charged accordingly.

Tenant tip: If the landlord doesn't inspect within three business days of your vacating the unit (turning in the keys), he must--by law--refund your entire deposit. He will have to sue you later for damages. (Tennessee law effective July 1997.)

Tenant tip: When you first move in, make a list of existing conditions and damages and ask the landlord to sign it. Less professional landlords may not be accustomed to this procedure and become defensive, so be cordial and show him/her this section of the book. He knows it's good business to record or photograph conditions for which you may later be held liable.

EXAMPLES OF WEAR AND TEAR:

Minor scratches & dulled finish on cabinets or woodwork

Slightly dirty or rubbed wallpaper, window or light covers

Linoleum or carpet faded, worn spots, loose at edges, minor scrapes and spots ( depends totally on age and quality!)

Enamel on fixtures or tile is slightly scratched, rusty or stained; grout is loose; worn out switches; minor leaks

Nail holes, tape marks, or cracks in wall from settling

Oven or refrigerator slightly discolored

Partially clogged sink due to aging pipes

EXAMPLES OF DAMAGE:

Missing doors or handles; split wood, gouges, burns, noticeable and unsightly stains and scratches

Unauthorized wallpaper or paint color; crayon markings, ruined paper, missing or broken blinds

Pet urine, fleas, stench, holes, unremovable stains, burns

Holes and chips in enamel, bent rods, missing parts or tiles, broken mirror, cabinet or lights

Large holes in walls, doors; broken windows and screens; missing fixtures & furnishings

Oven heavily encrusted; fridge moldy & smelly

Toilets clogged from improper flushing

Rotting wood frames or flooring is generally the landlord's problem, but if the damage occurred because you were careless in closing the shower curtain or window, or didn't report leakage under the toilet or sink, you may have created a very expensive repair for the landlord and will probably be sued for costs over and above your deposit.

The Landlord Tenant Act is clear about the steps both you and the landlord should take when you move out and want your deposit back. (See "Leaving Your Rental" in this chapter.) Within 3 business days after you move out, the landlord is required by law to give or mail you a "comprehensive" list of the damages you created, and an estimated repair cost for each one that he is charging against your deposit. If possible, inspect the unit with the landlord to ascertain the accuracy of the list. It is wise that you agree to take care of this as soon as possible. After cleaning and repairs begin it will be difficult to determine fault.

TENANT TIP: If you move before the final inspection takes place, be sure to let the landlord know in writing where to send the damage list and refund (keep a you-know-what). If he can't find you at your "last known address", he may lawfully keep your deposit.

The landlord will ask you to sign the list of damages. If you disagree with certain items, negotiate calmly. If you absolutely can't come to agreement, you may (l) refuse to sign it (2) ask for a copy and a Statement of Dissent form. Write one up yourself if the landlord doesn't know what you are talking about. Landlords sometimes assume that the deposit is theirs to keep regardless of careful use. This is thievery and you should take the matter to General Sessions Court yourself or with an attorney. Both parties might agree to have the issue mediated by the Better Business Bureau and save on legal costs. Your claim in court will be limited to the exact items you listed in your Statement of Dissent, so don't go to the trouble to sue unless you have "move-in" and "move-out" condition lists and the landlord has charged you for lots of wear-and- tear items or for expensive items that you can prove you didn't damage. Your documentation/photo file will serve you well if you must take the landlord to court to get what is due you.

CLEANLINESS: Read your lease! Some contracts demand that you leave the unit in the same condition that you found it or pay to restore it. This may include cleaning the carpet, all drawers, shelves, oven, tub, windows and blinds. If cleaning costs are charged against you deposit, they must be itemized.

WARNING: Many smaller landlords either don't know about or don't obey proscribed law regarding damage (security) deposits. Ask other tenants who are leaving whether they've been fairly charged and received their money within 30 days. If your landlord has a reputation for dishonesty, you might decide to subtract the amount of your deposit from your last month's rent, even though leases often prohibit this. Be ruthlessly honest in assessing your own destruction--and motives-- before you do this. You can't avoid paying for damages this way because the landlord can always sue you later.

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