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

UPDATED: Nov 6, 2011

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 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).

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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