Under what terms can a landlord withhold a refundable deposit upon move out?

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Under what terms can a landlord withhold a refundable deposit upon move out?

I am moving out of a rental house and the landlords are asking for the house to be in the condition it was in when my roommate’s mother moved in 5 years ago. My roommate moved in 3 years ago and I was added to the lease 10 months ago. I paid $250 when I moved in and the landlords have told us that when my roommate’s mom moved out (6 months ago) her deposit transferred to my roommate. The last inspection on the house was done when her mom moved in and nothing has been formally inspected since (no pictures taken, nothing in writing, etc). Can the landlords withhold all or part of the deposits?

Asked on November 6, 2011 under Real Estate Law, Oregon

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If you are talking about the security deposit--the deposit paid to the landlord to compensate hims or  her for any damage done to the premises, or in the event that tenants move out without paying all rent due--the landlord must return it unless and only to the extent that--

1) If the tenants, their families, their guests, or their pets damaged the premises in some way, the landlord may apply the deposit to the cost of repair; the landlord may *not* withhold part of the deposit to pay for the normal wear-and-tear any premises sufferes over time, or for the typical in-between tenants clean up, but only to repair specific damage caused by the tenants. The landlord must be able to document and prove the damage and the cost if the tenant's choose to challenge it and take him or her to court.

2) If the tenants did not pay all rent due when their tenancy ends, the deposit may be applied to the unpaid rent.

In both cases above, only as much of the deposit as is necessary for damages or unpaid rent may be used.

If the landlord does not return it and you believe he or she is withholding it incorrectly, you may sue him or her for its return, including in small claims court. In many states, if the landlord improperly withholds the security deposit, the tenant can recover extra compensation (e.g. double the amount withheld, which is the law in NJ under the state's Security Deposit Act).


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