Landlord / Tenant Q&A: LAURENE H. YOUNG, (B) MPM, RMP, REALTOR

LAURENE H. YOUNG, (B) MPM, RMP, REALTOR
Young Hawaii Homes, Inc.
2011 President, Oahu Chapter
National Association of Residential Property Managers

Q. I just moved out of an apartment that I lived in for 5 years. I cleaned the unit, but the owner said he was not going to return my security deposit because there were scuffs on the walls and he was going to charge me to repaint the entire apartment. He also said there were other things that I damaged that had to be repaired. I haven’t received any letter from the owner and it has been 3 weeks. He told me he would send me a bill for all the work he has to do. There were some scuffs on the walls from the furniture but I didn’t think there were any damages. Some of the items he pointed out were like that when I moved in.

What can I do?

A. You should be entitled to your entire security deposit back. Section 521.44 (c) of the Landlord-Tenant Code of Hawaii states “…if the landlord proposes to retain any amount of the security deposit…the landlord shall notify the tenant, in writing,…together with the particulars of and grounds for the retention, including written evidence of the costs of remedying tenant defaults, such as estimates or invoices for material and services or of the costs of cleaning, such as receipts for supplies and equipment or charges for cleaning services. The security deposit, or the portion of the security deposit remaining after the landlord has claimed and retained amounts authorized under this section, if any, shall be returned to the tenant not later than fourteen days after the termination of the rental agreement. If the landlord does not furnish the tenant with the written notice and other information required by this subsection, within fourteen days after the termination of the rental agreement, the landlord shall not be entitled to retain the security deposit or any part of it, and the landlord shall return the entire amount of the security deposit to the tenant.” So, your landlord did two things wrong. He did not send you written notice that he was keeping your security deposit along with estimates or invoices and he did not send you that written notice within 14 calendar days. You would be entitled to your entire security deposit back based on those two requirements. Your landlord may not agree however, and you may have to go to small claims court to get your security deposit returned. You have a one-year time limit after termination of the rental agreement to file any claim for your security deposit.

If the landlord is not able to complete the cleaning or repairs within 14 days, he should send out the notice along with an estimate. If the estimate is less than the security deposit held, he should send out a partial refund check. A landlord can prove that he sent this notice “if mailed to the tenant, at an address supplied to the landlord by the tenant, with acceptable proof of mailing and postmarked before midnight of the 14th day after the date of the termination of the rental agreement or if there is an acknowledgment by the tenant of receipt within the fourteen-day limit.” An example of an “acceptable proof of mailing” is mailing the letter via certified mail, which tracks the date the letter was mailed, when delivery was attempted and/or when the letter was delivered. If you are a landlord, and the tenant picks up the notice and check from you, have them sign something acknowledging that they received the notice and make sure it is dated within that time limit. If the letter is undeliverable, it will be returned to you; keep the unopened letter as proof of mailing.

We always strongly recommend that all landlords and tenants take pictures before and after the moves. This will help prevent disputes about the condition of the unit when the tenant moves out. After 5 years, you won’t remember if a certain wall had a scuff or not, or how large the scuff was. Also, if you are a landlord, most likely a judge won’t allow you to charge a tenant to repaint an entire unit because there are a few smudges on the walls. That would fall under normal wear-and-tear. Many landlords feel that, because they haven’t had to change their own carpets or paint their own houses in over 10 years, that a tenant should treat the unit with the same care. Unfortunately, some tenants are messier than landlords, and a judge would most likely assume that you may have to change carpets and repaint every 3-5 years. If there were large holes in the wall, the tenant could be charged. But, no matter how much damage a tenant has done to the unit, if the landlord has not sent written notice within 14 calendar days, he is out of luck. Verbal notice is not enough.

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