Tenants Advocates & Association
written by Ken Volk
About Security Deposits
This is a long article. If you care about your money,
you will read it. Only then will you know which details apply to you.
One of the biggest mistakes renters make is assuming that their landlords
or managers will behave honorably after termination of tenancy.Non-return,
or only partial return, of the security deposit are common, even when
dwelling units are left in immaculate condition. Additional claims are
Tenants should demand the return of their security deposits even when
none was originally paid. This is because by doing so a tenant puts a
14 day legal time constraint on the owner/agent being able to make any
claim. The last thing tenants need is to come home one day and find demands
for thousands of dollars from landlords of years ago, or that their credit
records are degraded and they are consequently unable to purchase homes
or cars or whatever.
Many landlords claim that tenants either owe rent, late fees, repair bills
or other charges from way into the past. This is despite any evidence
tenants may have to the contrary, including receipts or cancelled checks,
or that there had been no previous demand for these monies.
More often, the manager/landlord has a gripe, either real or concocted,
against the tenant. They will fabricate all sorts of physical damages
to the unit. Ridiculous claims are common -- ranging from overgrown weeds,
to a broken lock, to dirty carpets -- all of which were conditions existing
at the commencement of tenancy.
Frequently managers, after inspections of perfectly cleaned apartments,
refuse to return the security because of new claims never before mentioned.
can you do to protect yourself?
all, stop being naive and assuming that owners and agents will treat you
honorably once they no longer have to deal with you every month. The scent
of dollars can quickly alter the observed character of property managers.
Second, review ARS §§ 33-1321 (Security Deposits) and 33-1313 (Notice).
Hopefully at the commencement of your tenancy the owner provided you with
a form for specifying damages and you conducted a move-in inspection,
noting problems. Take photos, have a friendly witness present. When concluding
your tenancy, however, it is imperative you request that the owner/agent
inform you of when the move-out inspection will occur, so you can be present.
Don't verbally dance around the request, or request anything other than
what is underlined above -- it's language from the statute. The 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 owner/agent to cooperate.
One important precaution is to consider changing or re-keying your locks
and keeping the key for yourself only, in order to prevent management
from entering with insufficient notice or taking possession prematurely.
(Of course, read your lease carefully to make sure this is not prohibited.
Understand there is a risk that you will be held liable for structural
damages to the door, or other damages, should management need to enter
the premises by force in the event of a legitimate emergency.) It'll cost
you $6.00 or so at a hardware store.
you think your landlord is friendly...
Perhaps you think your landlord is friendly, and changes to the locks
is just paranoid. Tell that to the many tenants who have found themselves
illegally evicted, sometimes with police assistance, with little or no
notice. Renters have had their personal belongings tossed in trash bags
in front of their dwellings. Property worth thousands of dollars has been
appropriated. But even less extreme is the real possibility that you move
out your belongings, management enters without notifying you prior to
your delivery of the premises and return of the keys, management inspects
the premises in your absence and claims whatever it wants, and thereupon
management re-keys the locks thus denying you access, hindering your challenge
of its findings.
Obviously, do not turn in the keys until the conclusion of the inspection.
At the termination inspection, like I wrote above, have a witness present.
Also, use a camera 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. Create a check-out list, itemizing each and every element
you can imagine and leave space for ones that management wishes to bring
When you have completed the walk-through, ask management to sign the check-out
list in acknowledgement that it represents the true state of affairs at
that time. Present one copy to management, but most importantly, keep
the original for yourself. If management refuses to cooperate by signing
the document, you and your witness sign it anyway and take it with you.
Whenever you communicate with management by certified (or registered)
letter, return receipt requested, below your signature make the following
notation: "Via Certified (or Registered) Mail No. (place sticker # here),"
and then 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 management may refuse the
letter, you can 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. (A regular letter is invariably accepted.)
The most important factor of all is your preparation. You must clean the
premises and repair all damage that you caused or allowed to occur by
negligence. The place should be spotless, better than when you moved in.
Yes, that may be unfair, especially if the dwelling was a dump when you
took possession. But the fact is that you are at a disadvantage in Arizona
just by virtue of being a tenant. Deal with it. Do more than is reasonable.
Deny the owner any excuses to charge you.
Okay, let's say the inspection proceeded smoothly. The law says 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. While not stated as an absolute requirement in this section,
clearly it is incumbent upon you to also provide notification of your
new address. And while the statute is silent on the following, in practice
an oral demand for security return never happened, despite your having
gobs of witnesses attesting to the demand. Basically, 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 means you may not get the security back, and
you may face additional claims against you.
If the owner/agent has problems with the premises, you have two options.
Should the claims be arguably reasonable, you ought to correct the problems.
That's a bunch less costly than letting the other side do the repairs
and then billing you at an inflated rate. When you are done, ask for another
inspection to certify the owner/agent's satisfaction. If he/she refuses
or delays, then proceed on your own.
Alternatively, if the owner/agent is just feeding you a line and is clearly
way out of line, stand your ground and present your points. Common arguments
are: the damage was pre-existing at move-in; the damage is normal wear
and tear; the owner/agent caused the damage; and, of course, you dispute
the assertion that there is any damage.
The security demand letter should be handed to the owner/agent at the
conclusion of the final inspection, along with the keys. Of course, keep
a photocopy. As with anything delivered in person, you must be sure it
is before a friendly witness and then both of you should sign a contemporaneous
note making specific record of the transaction.
Should management fail to respond to your request to arrange a joint move-out
inspection, do your own. Take photos, notes, have witnesses. . . all the
usual steps. Then send the owner/agent your demand for return of the security
(mentioning all the key points), and also the keys with a cover letter
explaining that you are forced to send them by mail because the owner/agent
ignored your request to set the move-out inspection at which you had intended
to 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 management has received your demand, it has 14 business days (add
another five to accommodate the post office delivery) to do the following:
return the amount of security due; and to make any additional claims,
which must be itemized. 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 § 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." At this point you will
be thankful that you took photographs, had a witness, followed the inspection
process, and gave proper notice at all times.
the owner/agent will within the 14 days send you a letter or form itemizing
deductions. 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 owner/agent 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.
If the owner/agent never responded within the 14 day time frame, you are
in luck. Send a simple letter informing the owner/agent that he/she had
failed to timely respond, is therefore 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, that you will seek damages, and that the owner/agent
will also be liable for costs and attorney's fees if you prevail.
The fee for filing a complaint in small claims court is minimal. Service
of process upon the defendant is acceptable by certified mail, should
management accept it, while service by a process server is more reliable
but may cost about $40.00. Be careful to read the fine print in your lease
stipulating upon whom process must be served, and be sure to research
who, if anyone, is the owner's statutory agent. This sometimes is very
complex, and may involve using the secretary of state.
The problem with small claims, and why it is not recommended, is that
judgements are not subject to appeal. Because most justices of the peace
are extremely biased against tenants, the high risk of getting stuck with
an adverse small claims ruling is just not worth it. Better to have the
case heard in the civil division of justice court (only a little more
costly) so you can appeal, if necessary. Besides, even if you chose to
file in small claims, the opposing side has the option to request transfer
to the civil division where attorneys are permitted. So just plan on using
your own attorney, despite the cost; with an attorney the odds of success
are improved, because your statements will carry more credence with the
court. Yep, the system sucks.
Although it will be one lawsuit with a single case number, you should
name all the parties as defendants: on-site manager, management company,
statutory agent (if applicable) and especially owner(s). If you have never
previously known who is the owner, now is the time you must find out.
However, if you cover your bases properly you are more likely to find
that management will be careful to refund what is due to you; litigation
will be unnecessary. The tenant who hunkers down and keeps quiet is the
one most likely to get screwed.
It's highly recommended you utilize Arizona Tenants Advocates' help with
all correspondence. There are many detailed arguments to be presented
in precise language, and you will likely mess up. Use us.
ATA with any suggested site updates, additions
or corrections to this website.
by Kenneth A. Volk. All rights reserved.
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