Security Deposit Question

[journeystar.livejournal.com]

This is another landlord/tennant related question:

I moved out of my old apartment in June. My roommate moved out in July. It is now August 7th and I have yet to recieve my security deposit back. I was told my old roomie left the apartment in pretty bad condition but a)I moved out a month before him (taking pictures of how I left *my* half of the apartment)b)we had separate security deposit checks.
Reading over the tenant/landlord state guidelines for Massachusetts, it says I must have my security deposit returned within 30 days, and, if not, I must receive an explanation why it was held including a bill for repairs.I have received no communication from my old landlord despite several phone calls, letters, and messages regarding this matter.
On the whole, the people in this community seem very intelligent and well-educated in these matters. How should I proceed? Has anyone been in this situation before and had to go to small claims court? Would I need some sort of legal represenation and,moreover, where could I find such representation?
Thanks in advance!


8/8 EDIT: Thank you all!! You guys rock!

Comments

[prunesnprisms.livejournal.com]

I am pretty certain that when you agree to sign a lease with someone it's no longer that you have responsibility for half the apartment. You're saying that if one of you fails to keep up their end of the bargain you are responsible for the whole of it. I know that is in my lease which is a standard RHA lease. If your roommate left the apartment in less than great condition, I'm not sure you can say it isn't your responsibility, at the end of the day.

[nowalmart.livejournal.com]

Agreed, although the landlord does have the responsibility of providing a bill of repairs done to the apartment (for cleaning, etc.).

I would do the same thing I suggested in a previous post - send a certified letter, citing the law, and asking for some combination of deposit and repair bills. I would include a line that says something like "I would like to resolve this issue without having to resort to legal representation."

If that gets you nowhere, find an inexpensive attorney to send the same letter on his/her letterhead.

[nonnihil.livejournal.com]

First off, IANAL (I Am Not A Lawyer) but I know a fair number of people on both sides of the landlord-tenant line and have talked to lawyers about these things.

That said, here's my understanding:

(1) That you cleaned your part and that you had separate checks is completely irrelevant from a legal standpoint. If you signed the same lease it's both your deposits on the line for the final condition of the whole apartment. That's what the "jointly and severally" bit in the standard lease language means -- both of you are on the hook for what either of you does. If the state of your roommate's half of the apartment caused you to lose your deposit, your beef legally is with your roommate, not with the landlord.

(2) That you didn't get an explanation and a bill for repairs is strongly in your favor. You might have some luck in small-claims court over this -- I know people have succeeded in similar circumstances. You don't need a lawyer to succeed in small-claims court, and although it can help the amount of money at stake probably wouldn't justify spending money on a lawyer anyway. Of course the same is true of the landlord.

(3) According to many standard leases (and possibly MA law? I don't recall), you should have received information about an account set up to hold the security deposit money, as well as any interest it earns while it is on deposit. You should definitely see if you have this information, and ask the bank what the status of the account is. If you do end up going to court, this is one of the first things that will be asked -- where the money went, where it is now, whether it was handled in accordance with the law and the lease.

Thanks!

[journeystar.livejournal.com]

To clarify, the reason I mentioned "cleaning my half" was because I left one month prior to my roommate leaving and therefore couldn't be responsible for the condition he left the place in(it was a month to month lease,so my lease effectively ended June 1st while his ended July 1st). By Mass. State Law I have 30 days to recieve my security check back, which means I should have recieved it before my roommate moved out a month later. The way I interpret this is that my landlord should have checked all my areas of the apartment or the apartment in general within the 30 days he had to claim me and let me know whether he was going to give it back or not.

Thanks for all your tips!I will look into the whereabouts of the security deposit account. We never receievd this information, nor did we recieve a Statement of Condition even though we asked for one in writing.

Re: Thanks!

[marphod.livejournal.com]

Nice theory. Doesn't work that way.

Your lease, unless you and your roommate signed different ones, rather than one collectively, applies to you and your roommate as a collective unit. No one gets their security deposit back until EVERYONE has vacated the unit (or a new lease takes affect, which has an independent, distinct security deposit). You leaving before your roommate has no effect on when you get your portion back.


If your roommate screwed you, by leaving the place a mess, you can attempt to recover your portion of the deposit FROM HIM, but not from your landlord.

Re: Thanks!

[journeystar.livejournal.com]

Oh, I see. Would it be different because the lease was a month to month lease? I was not on the lease for June when he let things get very messy(he basically left all his furniture there)and the landlord was aware that he now only had one tenant and altered the rent accordingly.

Re: Thanks!

[dominika-kretek.livejournal.com]

IANAL, but I think it would be different if you were month-to-month. If you gave proper notice of when you were moving out, then the next month's lease is with your roommate only. I'm a little confused about the time-line here, but if it's been thirty days since your roommate moved out, you ought to be home free. Your landlord can do NOTHING. If it's only been over thirty days since you moved out, but still within the window for your roommate, and the lease is month-to-month, then I would suspect that as long as you gave timely notice your landlord can do NOTHING.

If your landlord didn't give you a written condition statement, your landlord can do NOTHING anyway, so this may all be moot. At that point you write a demand letter conceding nothing and demanding everything, and if that doesn't work you can take him to court.

It's too bad you don't live there still; someone who can't be bothered to install smoke detectors deserves to have the health inspectors sicced on them.

Re: Thanks!

[ayelle.livejournal.com]

You're in the clear, as far as I can tell from my experiences. I was on a month-to-month lease, I moved out, and from the point of my vacancy, I was no longer responsible for the apt -- it was all on the roommate remaining on the lease. I had other difficulties, but we didn't have a security deposit, so I don't know about that.

However, partway through my residency I received a check for the interest accumulated on my last month's rent that I'd paid in advance. It *is* MA law that landlords place anny security deposit AND last month's rent in an account and pay you the interest on it. If your landlord didn't do that, he has no legal foothold to withhold your money. He's also out of the 30 day range no matter how you count it.

Landlord-tenant law in MA is very much in favor of the tenant. And here's the thing: if you take your landlord to court (and you could get a lawyer to represent you for free, because to them this is an easy win), you are eligible for TRIPLE damages. If you indicate that you know this in your letter (because many landlords don't know themselves or just hope their tenants don't) I bet you'll get your money back within a week.

Also, be sure to ask monstrousform -- he was the one who got back my sister's security deposit from her evil landlord who had charged her too much to begin with and was withholding her money for no reason.

Re: Thanks!

[artic-monkeys.livejournal.com]

sorry for the multiple posts

Who did you give your security deposit to, the landlord or the other tenants?

Usually tenants who don't want to move out of an apartment will sort of sublet out, search for roommates, and handle whatever they need to do for security deposits. I don't know why the landlord would be getting involved with helping his tenants get roommates or collecting individual security deposits? How long were you there? You might should be going after your roommates for your deposit and not the landlord. Did the person who moved out before you get their share of the security deposit back? If so from where? the Landlord or the other tenants?

Re: Thanks!

[hakamadare.livejournal.com]

according to the Massachusetts Attorney General’s Tenants’ Rights FAQ (http://www.ago.state.ma.us/sp.cfm?pageid=1190), item 5, the AG’s office provides a free mediation service to resolve disputes like this one. this may be a good alternative to going to court, if the need arises.

on the other hand, i’m pretty sure that your landlord wouldn’t be legally able to rent a single unit to two separate people and maintain two separate leases. as such, i suspect the two of you are on the same lease, and thus your landlord isn’t obliged to give you your “half” of the security deposit if your roommate didn’t do a good job of cleaning. your landlord is obliged to provide you with an itemized list of deductions from the security deposit if asked, however, so that you can see where the money went.

some people sell sample forms (http://www.nolo.com/product.cfm/objectid/A2E227B7-7290-4446-A6C569737869C4DA/104/138/) online; one of these may be a good starting point for writing your “letter of demand”.

-steve

Re: Thanks!

[nalz.livejournal.com]

You can do separate leases on one place. Usually when this is done, each tenant is responsible for their portion of the $ separately from one another. Most landlords don't want to do this as, if they have one good tenant and one deadbeat, they want to be able to lean on the good one as well as the bad one for the other half.

Just an FYI that it can/does happen, albeit rarely.

[mattlistener.livejournal.com]

The standard thing to do is wait for the 30-day period to pass, and then send a "demand letter" for the security deposit plus 5% interest compounded monthly since the landlord received it from you. It should state all the relevant dates and give a mailing address to send the money to.

By allowing 30 days to pass without either returning the sec. dep. or providing you with a list of problems, the landlord has forfeited the right to deduct from it. Also, under MA law the security deposit must be held in an interest-bearing escrow and the details of the escrow account provided to you. Failing that, you're entitled to 5%. Both of these would be automatic court findings should a court become involved.

[unferth.livejournal.com]

I am not a lawyer, everything below is just based on my reading the laws and going through some somewhat similar experiences.

Legally speaking you're entitled to your full deposit back. If they want to make deductions, they have to make them before the 30 day period from the end of tenancy is up, and they have to be properly documented.

You could try calling or writing a letter to your landlord to get it resolved, if you think there's a chance this is an error on their part or it's just a delay in the mail or something. Or you could take them to small claims court over it. The relevant law is MGL Chapter 186 Section 15b; it's online at:
http://www.mass.gov/legis/laws/mgl/186-15b.htm

There's some general small claims court advice at:
http://www.lawlib.state.ma.us/small.html

Massachusetts law allows you to sue for reasonable lawyer's fees and court costs as well as your original deposit, so if you want you can consult with a lawyer and try to recover the fees in court. You can get good advice about how to proceed in small claims court from a single consultation, even if you don't hire on a lawyer full-time.

If you don't want to do that, you start the small claims court procedure by getting a Statement of Claim and Notice from the clerk of the court. I know the Somerville district court will mail one out if you send them a SASE asking for one.

Make sure you state on your claims form that you're requesting treble damages, assuming that's what you want. The $2000 smail claims court limit applies before the tripling, so it covers most security deposits easily.

[artic-monkeys.livejournal.com]

Did the landlord provide you with a signed statement of condition of the apartment within 30 days of moving in? They have to provide this statement if they expect to legally keep any of your security deposit: Here is a good FAQ page too: http://www.ago.state.ma.us/sp.cfm?pageid=1190

Thanks again :)

[journeystar.livejournal.com]

Nope, he didn't :( We did ask for one in writing. The previous tenant said she had never received one either. The whole thing mystifies me because he's lawyer, so you'd think he'd be familiar with the legal ramifications of such things. There wasn't a smoke detector, either (I provided my own).

Re: Thanks again :)

[artic-monkeys.livejournal.com]

he can not keep your security deposit then, The law is weighed heavily on your side if he did not issue this statement. Not unless maybe he claims he did, and can provide a record of such.

He can still take you to court and sue you if he believes you owe him damanges. But he would have to return your security deposit back or risk treble damages on that first. Lawyers are good bluffers so be prepared to be mystified but keep your poker face on.

Re: Thanks again :)

[artic-monkeys.livejournal.com]

check this link for the section "how the landlord must manage your Money" http://www.ago.state.ma.us/sp.cfm?pageid=1637

Re: Thanks again :)

[ukelele.livejournal.com]

The one really crappy landlord I had was a lawyer. Being a bad landlord seems to have less to do with awareness of the law and more to do with being a jerk (from which, stereotypically and alas, lawyers are not immune).

[protogeek.livejournal.com]

About 10 years ago, my brother and I took our ex-landlord to small claims court because he flat-out lied about some problems that he used as an excuse to try to keep our security deposit (we won). You don't need a lawyer for small claims court (and any lawyer you got would almost certainly mean you'd owe him/her more than you got back from court).

[ayelle.livejournal.com]

> any lawyer you got would almost certainly mean you'd owe him/her more than you got back from court

Not so. This would be a pretty simple case, and many lawyers would happily take it on for free and just take their percentage from the winnings (if that). I don't think she will need one, but it wouldn't be too hard if she did.

[unferth.livejournal.com]

You can also roll the fees into the suit itself - the awards for security deposit violations are triple damages, plus court costs and reasonable attorney's fees. So assuming you win your case and are actually able to collect your settlement, you shouldn't owe the lawyer anything in the end. Although it's definitely true that small claims court is not supposed to require a lawyer.

I don't know whether or not you'd be able to find a lawyer who'd take the case on contingency and also bill it as a flat fee which could be included in the suit rather than as a percentage of the award, or whether or not lawyer's fees count against the small claims court maximum. Or whether it's possible to claim a lawyer's percentage as attorney's fees. But presumably that would be something a lawyer could tell you.

Mediation

[closetalker11.livejournal.com]

Let me HIGHLY recommend and second those who mentioned using the state's landlord/tenant mediation service. It saves you money (unless I'm mistaken, you have to pay to file in small claims court) and chances are, since you're willing to put up even the smallest fight, you'll get your deposit back. And, you don't have to pay for an attorney: a mediator is provided free of charge.

Since you're on the Davis Square LJ, I'm guessing you're not in Boston proper. In that case, let me recommend giving the Mass Bar Association a call. they can give yo info on when landlord.tenant mediations are going on in your court.

avoid a lawyer if possible

[davelew.livejournal.com]

I recently had a security deposit dispute with my landlord, and the best advice I got was to keep lawyers out of it. Try to talk this out, and only bring in a lawyer if it gets really confrontational. Bringing in a lawyer too early is likely to escalate things and not get you your money back. I found the attorney general's office to be very helpful; I got started by calling the Massachusetts Consumer Protection Hotline, 617-727-8400. Here are some other links I found helpful:

http://www.mass.gov/legis/laws/mgl/186-15b.htm
http://www.mass.gov/courts/courtsandjudges/courts/bostonhousinghsd.html
http://www.mass.gov/courts/courtsandjudges/courts/bostonhousingmain.html
http://www.ago.state.ma.us/sp.cfm?pageid=1637
http://www.masslegalhelp.org/cat/1943

In my case, I sent a thirty day demand letter by certified mail stating what I thought happened, quoting the law, and saying why I thought keeping my security deposit was illegal. I got my money back in about a week.

Good luck.