Security Deposit Games.

Posted By Cliff Tuttle | July 25, 2010

No. 484

I have been having an interesting conversation with a former resident  in an apartment complex who moved out several months ago, leaving a forwarding address.  Her landlord sent here a “list of damages” which in fact contained no damages at all, and no refund check.

This landlord typically holds the entire security deposit pending water and sewer bills and a cable bill that have not yet been compiled. It also makes a deduction for carpet cleaning in all cases, which is written into the lease. Two months later, the deposit is still being held.

Under the Landlord and Tenant Act, the Landlord may withhold a security deposit to cover damages in excess of ordinary wear and tear, delinquent rent and violations of the lease. But the landlord doesn’t have the right to withhold a security deposit while waiting for utility bills.  By definition, bills that have not yet been presented cannot be delinquent.

If any damages, delinquent rent or violations of the lease do not exceed the deposit, the landlord is required to send the balance, along with the list of damages, to the tenant’s new address, within 30 days after the tenant vacates.  The statute states:

“If a landlord fails to pay the tenant the difference between the sum deposited, including any unpaid interest thereon, and the actual damages to the leasehold premises caused by the tenant within thirty days after termination of the lease or surrender and acceptance of the leasehold premises, the landlord shall be liable in assumpsit to double the amount by which the sum deposited in escrow, including any unpaid interest thereon, exceeds the actual damages to the leasehold premises caused by the tenant as determined by any court of record or court not of record having jurisdiction in civil actions at law. The burden of proof of actual damages caused by the tenant to the leasehold premises shall be on the landlord.”

In this case, the landlord is holding the whole deposit well past the thirty days without justification under the law.  This tenant has no delinquent rent.  There are no violations of the lease.  Even if you define utilities as additional rent, (many leases do) there are no delinquencies — only future bills. Ditto the unbilled cable charge.

Moreover, the mandatory carpet cleaning charge, even though it is written in the lease, should not be enforceable.  The Landlord and Tenant Act states that “any attempted waiver of this section by a tenant by contract or otherwise shall be void and unenforceable.”

For any of you are skeptical that I may have quoted the Landlord and Tenant Act out of context, here is the Section on security deposits in its entirety:

Section 250.512. Recovery of improperly held escrow funds

(a) Every landlord shall within thirty days of termination of a lease or upon surrender and acceptance of the leasehold premises, whichever first occurs, provide a tenant with a written list of any damages to the leasehold premises for which the landlord claims the tenant is liable. Delivery of the list shall be accompanied by payment of the difference between any sum deposited in escrow, including any unpaid interest thereon, for the payment of damages to the leasehold premises and the actual amount of damages to the leasehold premises caused by the tenant. Nothing in this section shall preclude the landlord from refusing to return the escrow fund, including any unpaid interest thereon, for nonpayment of rent or for the breach of any other condition in the lease by the tenant.

(b) Any landlord who fails to provide a written list within thirty days as required in subsection (a), above, shall forfeit all rights to withhold any portion of sums held in escrow, including any unpaid interest thereon, or to bring suit against the tenant for damages to the leasehold premises.

(c) If the landlord fails to pay the tenant the difference between the sum deposited, including any unpaid interest thereon, and the actual damages to the leasehold premises caused by the tenant within thirty days after termination of the lease or surrender and acceptance of the leasehold premises, the landlord shall be liable in assumpsit to double the amount by which the sum deposited in escrow, including any unpaid interest thereon, exceeds the actual damages to the leasehold premises caused by the tenant as determined by any court of record or court not of record having jurisdiction in civil actions at law. The burden of proof of actual damages caused by the tenant to the leasehold premises shall be on the landlord.

(d) Any attempted waiver of this section by a tenant by contract or otherwise shall be void and unenforceable.

(e) Failure of the tenant to provide the landlord with his new address in writing upon termination of the lease or upon surrender and acceptance of the leasehold premises shall relieve the landlord from any liability under this section. (f) This section shall apply only to residential leaseholds and not to commercial leaseholds.

CLT

Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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