One of the biggest mistakes renters sometimes make is assuming that their landlords will behave legally after termination of their tenancy. Non-refunds, or even a partial refunds of the security deposit are all to common, even when the unit is left in perfect move-in condition.
After vacating, many landlords will claim that the tenant either owes rent, late fees, repair bills or other charges. All to frequently landlords, after inspections of perfectly cleaned/repaired apartments, refuse to return the security because of new claims they claim are not “ordinary wear & tear” as defined by ARS §§ 33-1341 (Tenant obligations).
What can you do to protect yourself?
First, don’t assume that your former landlord will treat your vacating his premises in the proper legal manner. Second, review ARS §§ 33-1321 (Security Deposits) and ARS §§ 33-1313 (Notice) so you will have an idea what rights you have and responsibilities you do have.
And third, as a tenant you should demand the return of their security deposits even if none was paid at the beginning of your tenancy. Why? According to ARS §§ 33-1321 D (Security Deposits) your written demand, as tenant, puts a 14 day legal time constraint on the owner/agent being able to make any claim against you and demands for a complete accounting. The last thing any tenant wants to happen is to get served a lawsuit for thousands of dollars in damages from former landlords or have their credit reports full of negatives from former landlords.
Typically, at the commencement of your tenancy the owner provided you with a form for specifying damages and you conducted a move-in inspection, noting any pre-existing problems. If not, make up one or call us and we’ll fax/email one to you. Then do the walk-through and take photos of problems. Then, mail a copy to the landlord asking that this be included in your files. Now, when concluding your tenancy, you will have a list of what issues need fixing and what are normal wear & tear.
It’s Time to Move…Now What?
It is imperative you request that the landlord inform you of when the move-out inspection will occur, so you can be present. Don’t let the landlord deny this request, or request anything other than what is underlined above – it’s your right under ARS §§ 33-1321 Your request should be sent by certified mail, return receipt requested, several weeks before you actually plan to leave. Explain that you intend to return the keys at the joint move-out inspection, and that if the owner/agent fails to arrange such an inspection within a set period of time you will assume he/she accepts the dwelling in as good or better condition as when you originally took possession, ordinary wear and tear excepted. This puts the burden on the landlord to cooperate and gives you evidence should you need to fight his suit for damages.
It’s Inspection Day…What Now?
First, pursuant to ARS §§ 33-1341 you should have cleaned the premises and repaired all damage that you caused or allowed to occur by your negligence, if any. To determine, what is normal wear & tear and what is not… review the chart below.
Curtains faded by the sun
Cigarette burns in curtains or carpets
Water-stained linoleum by shower
Broken tiles in bathroom
Minor marks on or nicks in wall
Large marks on or holes in wall
Dents in the wall where a door handle bumped it
Door off its hinges
Moderate dirt or spotting on carpet
Rips in carpet or urine stains from pets
A few small tack or nail holes in wall from pictures
Lots of picture holes or gouges in walls that require patching as well as repainting
Worn gaskets on refrigerator doors
Broken refrigerator shelf
Faded paint on bedroom wall
Water damage on wall from hanging plants
Dark patches of ingrained soil on hardwood floors that have lost their finish and have been worn down to bare wood
Water stains on wood floors and windowsills caused by windows being left open during rainstorms
Stains on old porcelain fixtures that have lost their protective coating
Grime-coated bathtub and toilet
Moderately dirty mini-blinds
Bathroom mirror beginning to “de-silver” (black spots)
Mirrors caked with lipstick and makeup
Toilet flushes inadequately because mineral deposits have clogged the jets
Toilet won’t flush properly because it’s stopped up with a diaper
Clothes dryer that delivers cold air because the thermostat has given out
Dryer that won’t turn at all because it’s been over-loaded
Warped cabinet doors that won’t close
Sticky cabinets and interiors
A rug worn thin by normal use
Stains in rug caused by a leaking fish tank
Typically, landlords may attempt to charge tenants for any cleaning or repairs necessary to restore the rental unit to its condition at the beginning of the tenancy. Landlords may not, however, use the tenant’s security deposit to cover the costs of ordinary wear and tear. If you have a problem landlord, call us today. We can help!
Second, do not return the keys until the conclusion of the inspection. During the termination inspection, you have several options to protect yourself:
Have a witness present;
Use a digitalcamera or a video camera to establish a visual record of the conditions. If your camera does not have a time-date stamp on the photo, make sure that you have the front page of the main daily newspaper (e.g. The Arizona Republic) prominently visible in the photos; if a Polaroid, the headlines should be visible in each shot, and if the camera uses negative film, make sure that at least the first shot of each roll used has the headlines visible. And,
Create a check-out list, itemizing each and every element you can imagine and leave space for ones that the landlord may bring up.
When you have completed the walk-through, ask the landlord to sign the check-out list in acknowledgement that it represents the true state of affairs at that time. Keep the original and present one copy to the landlord. If the landlord refuses to sign the document, you and/or your witness sign it, and still hand it to him. If he still refuses, drop it at his feet.
Communicating With Landlords
Whenever you communicate with landlords, some recommend doing so by certified (or registered) letter. Others, suggest regular mail as some landlords may refuse certified mail. If you use certified mail, return receipt requested, follow these instructions:
Below your signature make the following notation: “Via Certified (or Registered) Mail No. (place sticker # here),”
On the next line below write “Return Receipt Requested.” By doing this you are correlating the letter with the envelope and with the return receipt that the recipient signs.
If you think the landlord may refuse the letter, send a copy by regular mail, making another notation on the letter to that effect, and obtaining a Certificate of Mailing from the post office for that letter.
Inspections Over…Now What?
Okay, let’s say the inspection proceeded smoothly. In Arizona, the law, ARS §§ 33-1321, states that in order to recover your security deposit, in part or in full, you must terminate the tenancy, deliver possession of the unit, and demand return of the security. And, demand it in writing, as in theory an oral demand for return of security deposit never happened. So, you must integrate a demand into a signed and dated letter that covers the issues of this paragraph, keeping a copy for your records. Failure to fulfill any and all of these stipulations might mean you don’t get the security deposit back, and you may face additional claims against you.
Caveat. If the landlord has problems with the premises, you have options. If the claims are reasonable (print out the above wear & tear chart), you should correct the problems either by doing them yourself or hiring someone else to do them on your behalf. It will be less costly than letting the landlord do the repairs and then billing you at an inflated rate. When the problem issues are repaired, ask for another inspection to certify the landlords satisfaction.
If the landlord fails to respond to your request to arrange a joint move-out inspection, do it on your own. Take photos, notes, have witnesses, make repairs. . . all the usual steps mentioned above. Then send the landlord your demand for return of the security deposit… along with the keys (sending the keys can mitigate either new key/locks fees and/or the fact that you still are occupying the premises which means more rent do the landlord). Include in your demand letter the fact that you are sending them by mail as the landlord refused your request to be present at the move-out inspection so that you could not deliver possession by handing over the keys. Use the post office as your witness by giving notice and return of the key(s) via certified or registered mail, return receipt requested.
Once the landlord has received your demand, he has 14 business days, not counting Saturdays, Sundays & holidays, to do the following:
return the amount of security due; and/or,
make any additional itemized claims for damages.
If any of your security has been withheld, included with whatever security is actually returned must be a statement itemizing the “damages which the landlord has suffered by reason of the tenant’s noncompliance with ARS § 33-1341.” If management fails to properly return what is due to you within the required time frame and with the proper itemization, then you have the right to sue for its return plus damages “equal to twice the amount wrongfully withheld.” ARS § 33-1341D
Hopefully, the landlord will, within the 14 days, respond according to law. If his letter contains items of dispute, it’s a good idea to dispute each and every improper claim, explaining why you are not liable and that the charges are unwarranted. Give the landlord a deadline to respond by sending you what is wrongfully being withheld, and tell him/her that if the specific amount isn’t returned to you within a given number of days you’ll commence a legal action to recover it, that you’ll seek damages, and if you that the prevail owner/agent will also be liable for costs and attorney’s fees. In these situations, it might be productive to ask for 3rd party assistance…this is where we come in. If you want it done right, please contact us…we can help.
The Landlord Failed to Respond…What Now?
If the landlord fails to respond within the 14 day time frame, you have two options:
Send a simple letter informing the landlord that he/she had failed to timely respond; is liable for damages in addition to the amount wrongfully withheld; and that if the specific amount is not returned to you within a given number of days you will commence a legal action to recover it; or,
Hire us to write the letter…most often, our assistance gets the message across faster.
The Letter Didn’t Work…What Now?
It’s court time. If your damages are under $2,500 then you might want to go the Small Claims route. For Small Claims information>>>
Bottom line, if you feel you can do this on your own…go for it! If you can’t or don’t have the time we recommend you utilize Equal Access to help with all correspondence…then add our costs to your damages. Contact us today!