I have received many calls from both landlords and managers over the years asking me if they are legally allowed to deduct X, Y, or Z from a tenant’s security deposit. I fielded such a question just last week – sounds like a good topic for a blog post.
Wisconsin Administrative Code, ATCP 134.06(3) states that a landlord may deduct from a tenant’s security deposit for the following:
1. Damage, waste, or neglect of the unit
2. Unpaid rent
3. Unpaid utilities for which the tenant is responsible
4. Payment for which the tenant owes for direct utility service provided by a government-owned utility (to the extent that the landlord becomes liable for the tenant’s nonpayment)
5. Unpaid mobile home parking fees which a local unit of government has assessed against the tenant (to the extent that the landlord becomes liable for the tenant’s nonpayment), and
6. Other reasons as set forth in a document entitled “Nonstandard Rental Provisions.”
For the majority of landlords and managers out there, items #4 and #5 are not often applicable, so I will focus my attention on the remaining items.
If you want to hold a tenant responsible for damage that they caused to your rental unit then you must first demonstrate that the damage was not pre-existing. To do this you should take photos of the entire rental unit prior to a tenant moving in. You should also complete a Check-In form yourself prior to the tenant moving in. Essentially a Check-In form lists the various rooms and areas of the rental unit and provides space for you to note any damage or problems. Once the tenant has moved in you should then provide the tenant with a blank Check-In form and ask them to complete it fully, date it, and sign it and then return it to you promptly.
Upon receipt of the tenant’s completed Check-In form you should compare it to the one that you completed earlier. If there are major differences between the two you should address this immediately with your tenant. Oftentimes the discrepancy will be due to the tenant causing damages during the move-in process.
If the tenant fails to return the Check-In form then a landlord should document this in the tenant’s file. If there is a dispute at a later date, the landlord will now have proof (a contemporaneous document) demonstrating that s/he did provide the tenant with the form and that the tenant, for whatever reason, chose not to complete it.
After your tenant moves out of the unit you should take the time to fully inspect the unit and take photographs of any and all damage, waste, or neglect that you see. Digital cameras (and some of the better phones which include cameras) are great for this purpose. Be sure and use the time/date stamp function if you have it. For those of you that are partial to using a camcorder to record the condition of the rental unit instead of photographs, I would caution you that most commissioners do not have the time or inclination to view a 20 minute tape of you walking around the apartment. Additionally, landlords that I have represented that have opted to videotape the move-out condition of the unit often make inappropriate statements while they are taping which if heard by the judge or commissioner could hamper your case. Furthermore, most courts do not supply the playback equipment needed to view a recording. So unless you want to haul around a VCR and television (“old school”) or a digital camcorder and possibly a computer (“new school”) – stick to photos.
After the landlord has inspected the unit and taken photos s/he should also complete the Check-Out portion of the Check-In Check-Out form. By doing so, the landlord will now have a “before and after” view of the rental property in one single document to submit as an exhibit in court should it become necessary.
By having photos taken before the tenant moved in, photos taken after the tenant moved out, a Check-In form completed prior to (or immediately after) the tenant moved in, and a Check-Out form completed after the tenant moved out, a landlord should be in pretty good shape to prove any tenant damage, waste, or neglect, if needed.
Do not forget that a landlord is not allowed to deduct for “normal wear and tear.” This phrase has never been defined in any Wisconsin statute, administrative rule, or case. Once again, the determination of what is “normal wear and tear” is left to the discretion of the commissioner or judge and may vary from day to day (or even hour to hour – as I have had the misfortune of experiencing)
Unpaid Rent: Deducting unpaid rent from a security deposit would seem pretty straight forward but that is not always the case. Prior to deducting unpaid rent from a tenant’s security deposit a landlord should be sure that s/he can prove what the monthly rent amount is. If you are using a written rental agreement that should do the trick. If you do not have a written rental agreement – a cardinal sin in the rental industry – then you will most likely need to provide proof of your tenant’s rent payment history to demonstrate what the monthly rental amount is.
The issue regarding deductions for rent payments often centers on the determination of when the tenant is no longer responsible for paying rent. This can arise in many different contexts.
One such context would be whether or not the tenant is still responsible for paying rent after they vacate the unit. Another relevant context would be whether or not the tenant is responsible for paying the full rental amount because of the poor condition of the property. Determining whether or not a tenant is responsible for rent in the above contexts (and the myriad of other situations) often depends on a number of factors such as: (1) was the rental agreement a lease for a specific term, (2) did the tenant leave prior to the ending of the term, (2) did the tenant provide the landlord with proper notice of their intent to vacate, (3) was the rental unit uninhabitable, (4) was there sufficient damage to the rental unit such that a tenant could be entitled to “abate” some of the rent, and (5) did the landlord make reasonable efforts re-rent the unit after the tenant vacated.
Unpaid Utilities: This deduction would seem to be fairly straightforward, either the tenant paid their utility bill or they didn’t. But before you make any deduction for utilities from a tenant’s security deposit you should make sure that you have adequate proof to demonstrate that the tenant was responsible for paying the utility. Once again this is where a written rental agreement is a necessity. If you don’t have a rental agreement that clearly states whether or not the utilities are included or not you will often find yourself in a “he said – she said” situation. The person that usually wins that credibility judgment is the party that is the best at lying. Avoid being stuck in such a situation and always use a written rental agreement (even if your tenant is on a month to month tenancy) and always indicate in that rental agreement who is responsible for the utilities.
Another issue that arises with utility fee deductions is whether or not the utility bill became due prior to the 21 day period in which a landlord must either return a tenant’s security deposit or provide the tenant with a written itemization as to how their security deposit was applied. Landlords need to remember that they cannot just hold onto a tenant’s security deposit indefinitely while waiting for the utility bill to arrive. Once your tenant vacates, you will need to contact the applicable utility service and find out what amounts are owed as of that date. Attempt to obtain a written record of this amount if possible. A landlord is not excused form the 21 day requirement under ATCP 134.06(2) just because he or she didn’t yet receive the utility bill for which the tenant is responsible.
Other Reasons as stated in the Nonstandard Rental Provisions: As was mentioned above, if a landlord wishes to be able to legally withhold from a tenant’s security deposit anything other then items 1-5 above, then the landlord must have those additional items set forth in a written NSRP document. There is no such thing as a verbal NSRP. So those landlords that are handling everything verbally – you have limited yourself as to what you may deduct from your tenant’s deposit.
The items in the NSRP should be specifically identified and discussed with the tenant and you must have the tenant either sign or initial the provisions. Examples of items that are often included in a NSRP include: fees for the late payment of rent, the resulting costs to the landlord if a tenant’s check is returned for “insufficient funds,” any fees charged to the landlord by the local municipality for the tenant’s improperly disposing of recyclables, fees for a tenant’s failure to permit access to rental unit, the costs to rekey the locks should the tenant fail to return the keys to the unit after vacating, fees for smoking in a non-smoking unit etc. Some landlords charge a flat fee if the tenant fails to clean the stove or refrigerator but other landlords feel that such “liquidated damages” are illegal and if deducted from a tenant’s security deposit might open the landlord up for being sued for double damages and atttorney fees. From recent case law it appears that it would be legal to charge a tenant for the actual costs incurred by the landlord for cleaning – at least if the landlord uses an outside company to do the work. The issue of deducting fees for cleaning from a tenat’s security deposit is somewhat of a “grey” area so prior to placing such a provision in your NSRP you should consult with your landlord-tenant law attorney.
For those of you that are thinking creatively, I hate to squash your creativity but “no” a landlord may still not deduct for “normal wear and tear” even if there is a specific NSRP saying that such a deduction can be made and it is signed or initialed by the tent.
So that is it – those are the items that a landlord may legally deduct from a tenant’s security deposit in Wisconsin.
Two additional notes of caution. First, if you make an improper deduction from a tenant’s security deposit Wisconsin law allow for your tenant to recover double damages and their attorney’s fees if they prevail. attorney’s fees. So be careful. Second, security deposits are just that – security. A security deposit should not be treated as an additional source of income – something that a landlord can keep at the end of every tenancy. If you are withholding the entire amount of your tenant’s security deposit after they leave – every time and with every tenant – then it is just a matter of time until you will be sued and have to defend yourself against “double damages” and “attorney’s fees.” You do not make money in this industry by keeping your tenant’s security deposits; nor is that the purpose of a security deposit.
To read about a landlord that got burned by not following the above information please go to my January 7, 2010 post.
#1 by Liane Jones on January 18th, 2010
| Quote
Question: When you have a lease for more then a year (say an 18 mth lease) and a landlord needs to give a notice for non-payment of rent, you have to give a 30-day notice instead of the typical 5-day notice for non-payment of rent.
How do you handle it when a tenant wants to move in days before the beginning of the one year lease? Example: One year lease starts on Feb 1st and tenant wants to move in on
Jan 20th? Is this considered more than a one year lease? I typically write, as in the example above, the length of the lease “one year plus 10 days”.
Thank you.
Liane Jones
#2 by Tristan R. Pettit, Esq. on January 18th, 2010
| Quote
Liane – Thanks you for posting your comment and question.
First, I would draw your attention to Sec. 704.17 (5) of the Wisconsin Statutes. This statutory provision states that if you have a lease for more than 1 year and the lease contains language that is contrary to the 30 day notice provision (i.e. allows you to give a 5 day notice and/or 14 day notice like you can for leases of 1 year or less) that the language in the contrary provision will prevail. So if you are using a good lease that contains this additional language you may not be required to follow the 30 day notice requirement. The lease that I draft for Wisconsin Legal Blank Co, Inc. contains this contrary language at lines 132-141. Unfortunately not all court commissioners or judges are aware of this statutory provision so you may need to educate them on this.
With regard to your question, I have seen it handled many ways. Some people will enter into a separate agreement for the extra days prior to the commencement of the lease term — i.e. enter into a Rental Agreement for 7 days. Other landlords will just make some sort of a written record of the tenant being able to move in on X date, prior to the lease term commencing, in exchange for paying a pro-rated amount of rent in the amount of $Y. This language should be in a separate document from the Rental Agreement. Other landlords just handle such a situation by orally agreeing to let the tenant move in prior to the lease term commencing. Since, you as a landlord, will have legal exposure once a tenant moves in to your unit I would not reccomend doing anything orally. Put this separate agreement in writing.
Because your lease may not have the contrary language mentioned above I would not reccomend that you address the situation as you suggested by adding the extra language to the rental agreement istseld as there is the possibility that a judge or commissioner could end up deciding that you now have a lease for more than 1 year.
Hope that helps.
#3 by John (Dr Rent) Fischer on January 19th, 2010
| Quote
Personally, I will list the lease term as 1 year, from 2/1/10 to 1/31/11…
Then there is normally a place for a few lines of comments, where I will write in “Tenant may occupy the premises prior to 2/1/10 by paying a pro-rated rent of $___ per day”
In addition to court officials not knowing that you can get around the 30-Day Notice requirement by having other language in the contract, many don’t know that there is a 30-Day Notice requirement once that lease exceeds a year in length
#4 by Jenneane on April 8th, 2010
| Quote
I had a renter on a 1 year commercial lease(standard form). He gave me one day notice that he will no longer be renting. I have 2 months rent for security deposit. If I rent it after 1 month do I return his 2nd month?
#5 by Tristan R. Pettit, Esq. on April 10th, 2010
| Quote
Thanks for your question. Commerical leases are very different then residential leases and the laws that are applicable are also different. So you need to read your commercial lease carefully. Commercial leases are also typically for a longer term so a tenant may be on the hook for rent for a longer period of time not to mention the fact that commercial properties are also more difficult to re-rent quickly.
I cannot specifically answer your question as I cannot give legal advice via this blog. However, the general law says that if a landlord is able to re-rent a property for the same rental amount as the breaching tenant paid then the landlord has not been damages except for the associated costs of re-rental. So there is a possibility that you may have to return some of the tenant’s security deposit. But there are many facts that could be at play that would affect that answer as well as what the commercial lease says.
#6 by Ben on May 8th, 2010
| Quote
Must a landlord provide you with an itemized list of intended deductions to your security deposit before deductions, and must they be able to provide you with that list upon demand? (Wisconsin)
Thank you!!
#7 by Tristan R. Pettit, Esq. on May 8th, 2010
| Quote
Ben – Thanks for your question. According to the Wisconsin Administrative Code, specifically ATCP 134, which is entitled Residential Rental Practices, a landlord must do one of two things within 21 days of a tenant vacating a rental unit. The landlord must mail or deliver the full amount of the security deposit to the tenant or the landlord must send or deliver a statement of how the security deposit was applied. Essentially this “21 day letter” should clearly identify what your security deposit is being retained for: past due rent, late fees, utility charges, damages to the unit etc. I always tell my landlord clients that they should itemize the amounts deducted so that the tenant who receives the letter has a clear understanding. ATCP 134.06(4) states that the “statement (i.e. letter) shall describe each item of physical damage or other claim made against the security deposit, and the amount withheld as reasonable compensation for each item or claim.:
#8 by Amy on June 6th, 2010
| Quote
I had a tenant on a lease which expired they asked to stay month to month (which they did). When they moved out they did not give me a notice of any sort, just packed up and left all in one day. Can I keep their security deposit to cover their 30 day notice?
#9 by Tristan R. Pettit, Esq. on June 6th, 2010
| Quote
Amy – thanks for your question. I am unable to give out legal advice via this blog. Your questions is also very fact intensive — in order to give you proper legal advice, I or another attorney, would need to review your rental agreement, discuss with you about any communications between the parties etc etc. — you should retain and consult with an attorney to insure that you get proper and accurate advice.
T
#10 by Sam on September 17th, 2010
| Quote
Regarding security deposits:
There are two roommates living together under the same lease. One of their pets does damage to carpet.
Say there was damages amounting in $1000 and the security deposit was $700.
Can the landlord bill only one tenant for the remaining $300 or must they bill each tenant for $150?
#11 by Tristan R. Pettit, Esq. on September 17th, 2010
| Quote
Sam — Good question as it involves a concept that many landlords do not understand very well.
Your tenants signed one lease to pay one security deposit and to live in one unit and pay monthly rent of X. So any debt would be the responsibility of both all tenants. So any bill should be sent to both of them for the full amount.
Putting it in another context — payment of rent — it might be easier to understand — – when rent is due you should not be accepting one check from tenant A for 1/2 of the rent and another check from tenant B for the other 1/2 of rent. If that were the case then you would have had 2 leases (one with each tenant) and each of them was to pay 1/2 of the total rent. That is not want you have here — you have one lease. So the full amount of rent should be paid — preferably with one check. It does not matter to you who pays what (and truthfully it really isn’t a landlord’s business how tenant’s split rent up or if one person pays it all) — if one of the tenants pays 80% and the other pays 20% that is up to them — your lease says that you are entitled to full rent and both tenants signed it.
Most leases indicate that the tenants are “jointly and severally” liable which means you can go after one of them for the entire debt (i.e. the one with a good job) and then that tenant can sue his roommate if he wants to to get a portion back.
You cannot double dip and accept $300 from both. But as long as you get $300 it doesn not matter who pays it or how they split it up — that is between them. So your notice should be sent to both tenants telling them they owe $300.
#12 by Kristen Bourn on October 25th, 2010
| Quote
I rented a property for 2 years, of which during that time my landlords rented out the bar next door to my house. The lessee from the bar got angry one night and decided to bash out 9 windows out of the house I was renting. My landlords chose not to press charges (the lessee of the bar owes them a substantial amount of money and they want out of having to deal with the bar). As was, I had already given them my 30 days notice to vacate due to landlord neglect of the property and only had 2 weeks left at the property. When I finally received my security deposit back, all was there except for the damage that was done to the windows. Am I legally responsible for the damages when they were not caused by myself or a guest of my property? A police report was filed but charges were refused by the landlords. I haven’t cashed the check they have sent me which oddly enough is in the name of the bar next door of which they are leasing out.
#13 by Tristan R. Pettit, Esq. on October 26th, 2010
| Quote
Kristen — Thank for your question and for reading my blog. I cannot answer any specific legal questions or provide legal advise. I can however advise you of the pertinent law.
A landlord is only allowed to deduct for damage, neglect or waste (along with rent, utilities, and other items specified in a nonstandard rental provision document).
In order to legally deduct from a tenant’s security deposit for damage, the damage would have to be caused by the tenant or the tenant’s guests or invitees. If a landlord cannot provie that the tenant (or the tenant’s guests or invitees) caused the damage somehow then there is a possibility that the landlord made an improper deduction.
It would also be necessary to review the language of the lease to see what it says regarding damage.
If you feel your security deposit was improperly retained for damage that you can prove you did not commit then you may want to consider reviewing your case with a lawyer that specializes in representing tenants.
#14 by Natasha on January 7th, 2011
| Quote
If a landlord keeps part of your security deposit to replace carpeting due to a stain, is the landlord required by law to replace the carpeting? What if they rent the unit out and pocket the cash? Is this legal?
#15 by Tristan R. Pettit, Esq. on January 8th, 2011
| Quote
Natasha — Thanks for your question but please realize that I cannot give legal advice via this blog. Generally speaking however, the amount that a L can deduct is the cost to repair the damage caused by the tenant. Typically this is the cost incurred by the L to fix the damage. I am not aware of any caselaw that requires the damage to be repaired however. ATCP 134 even allows for a reasonable estimate of the cost of repairs so that would indicate that at that time , since it is only an estimate, the repair work was not done. Whether or not the work needs to be done later is not answered to my knowledge. I believe that a good argument can be made that amount deducted covers the depreciation value to the carpet as a result of the stain, regardless as to whether or not the stain was removed. I have not handled any cases on that specific issue and am not aware of any caselaw addressing that specific issue either.
#16 by Lisa on January 10th, 2011
| Quote
I have a situation I have a tenant who has rental assistance. They have signed our lease for a year but we have not signed the citys lease. They moved in jan 1st well we did tell they could have a small dog but there would be extra money required. They got the dog without telling anyone and did not want pay any extra money. So there were more issues and the new tenant was more than willing to move out with no care. So she is only staying a month and we are letting her out of her lease, can we keep some of the security deposit for lose of rent because they did not want to work with me.
#17 by Tristan R. Pettit, Esq. on January 11th, 2011
| Quote
Lisa — Your question, any any possible answer, will be very dependant on the specific facts. Applying law to specific facts is providing legal advice and I cannot provide legal advice via this blog. I would reccomend that you retain a lawyer to assist you with this analysis, becasue if you keep the security deposit and legally you are unable to do so, it could be a very expensive mistake.
T
#18 by Christine on February 9th, 2011
| Quote
I have tenants who are moving out after 2.5 years. They are going through a divorce and husband has moved elsewhere. Husband was responsible for lawncare w/ mower provided. When husband moved out he took mower with him. We’ve attempted contact numerous times to retrieve the mower and have been unsucessful. Wife is vacating apartment end of Feb. My question is can we deduct mower from their security deposit? Husband also did damage to apartment before vacating which will need repair and is easily documented. Further note: He stated he did take the mower and still had it in his posession but has failed to return it. Additionally he never had permission to remove it from the property.
#19 by Tristan R. Pettit, Esq. on February 9th, 2011
| Quote
Christine — I cannot give legal advice via this blog. The answer to your question will depend on the specific facts and the wording of your non-standard rental provision as well as any agreement (written or otherwise) with regard to the lawn mower.
I can tell you generally that any damage by a tenant can be deducted from the security per Wisconsin Statute.
I realize that this does not answer your specific quetion but you will need to retain an attorney or speak with a seasoned landlord or property manager who can get all of the specific facts and review the necessary documents in order to get an informed opinion.
If you were to deduct something from the tenant’s security deposit that is not allowed then you open yourself up to potential liability for double damages and having to pay the tenant’s atty. fees. So be cautious – and if you are unsure, return the security deposit and then sue the tenant for money damages — doing this removes you from the potential of having to pay double damages and atty. fees if you are wrong.
T
T
#20 by lou glassman on March 22nd, 2011
| Quote
I have two roommates on one lease with one security deposit. They have passed the one year mark and are now on a month to month lease. Apparently they are not getting along and one of them is moving out. They want 1/2 the security deposit back. I think they should get it from their room mate. OR – would it be proper to do a move out inspection at the end of the month, square away the deposit with both roommates, and then write a new lease with the remaining tenant? Thanks. Lou Glassman
#21 by Tristan R. Pettit, Esq. on March 22nd, 2011
| Quote
Lou — I cant give legal advice via this blog but I can advice you of the law regarding this issue and point out some potential issues.
A landlord need not return a security deposit until 21 days after the rental unit is surrendered. In the situation you mentioned, the rental unit has not been surrendered — only 1 roommate is leaving. So the issue of the security deposit, in the absence of both tenants moving out, is really between the 2 tenants. The security deposit is security for the unit not for the tenant individually so it is not like one tenant is entitled to 50% and the other is entitled to the 50%.
The Wisconsin Administrative Code, ATCP 134, requires that if multiple tenants, that the landlord make the check returning a security deposit payable to all tenants unless the tenants nominate a payee in writing. The reason ATCP 134 requires payment being made to all the tenants is because the security deposit is for the security of the entire unit and the government understands this and agrees that a landlord should not get in the middle of fighting tenants.
You did touch on another option however. If you wish you can decide to end the month to month tenancy with both tenants and then enter into a new rental agreement with just the one tenant or that one tenant and a new roommate. In that case a good argument can be made that since the original tenancy ended that the unti was surrendered and the landlord should comply with the regulations regarding return of the security deposit.
One potentail problem with this option is it is difficult to really assess any damage to a rental unit when one tenant has not moved his/her belongings out — there could be damage that you cannot see.
T
#22 by Guy on March 28th, 2011
| Quote
I signed a lease, as well as a “non-standard lease provisions form”, in which I agreed to pay various fees,such as $25 for each appliance that isn’t cleaned to my landlord’s acceptance, $25 per room, etc. Is this allowable under Wisconsin state law, or would this be considered “normal wear and tear”. Iwould appreciate a prompt response. My lease is up on 03/31 and my landlord has been horrible…even entered my apartment without my permission. Thank you.
#23 by Tristan R. Pettit, Esq. on March 29th, 2011
| Quote
Guy – I cannot give legal advice via this blog. The answer to your question depends on an analysis of the specific facts in your situation to the law. Generally yes, a landlord can include cleaning charges in a NSRP for failure to clean an appliance. Whether or not a certain amount can be deducted from a security deposit for the cleaning depends on the actual cost to the landlord to clean the appliance as well as other factual issues such as: how long the tenant resided in the unit, how dirty the appliance was left, etc. etc. So there is not a simple answer to your question.
#24 by Guy on March 29th, 2011
| Quote
Thank you, Tristan. I am extremely clean. I have only been there for one year and will leave it in great shape for him.
I was trying to research the topic and it sounded like,even though I did sign the NSRP, charges for cleaning can’t be allowed because it’s considered “normal wear and tear”. I guess I’ll find out, because he has harassed previous tenants similarly. Thank you, again.
#25 by Jo on April 26th, 2011
| Quote
I’m moving with my friend, who already has security deposit with the landlord, can the LL collect another security deposit from me?
#26 by Tristan R. Pettit, Esq. on April 27th, 2011
| Quote
It depends on what the rental agreement says and what the parties agree to. If you are entering into a new agreement with the landlord then the security deposit can be for whatever you and your roomate and the landlord agree to.
T
#27 by Debbie on May 30th, 2011
| Quote
Tristan: A tenant that recently moved signed the nonstandard rental provisions form (6/1/08) that DOESNOT itemize costs for cleaning etc. as the old ones did. Can I charge for cleaning? Also, they left personal property (a boat) and said they’d return to pick up (verbal agreement). Been 2 weeks and still a boat in the garage. What steps should I follow to have the boat removed? Can I deduct from their security and consider it abandoned property or should I send a series of letters to document my attempt to return their property?
#28 by Tristan R. Pettit, Esq. on June 1st, 2011
| Quote
Debbie
Great questions.
Any abandoned property should be dealt with according to sec. 704.05(5) of the Wisconsin Statutes, unless your rental agreement has some other language addressing this issue. Essentially you should send a letter to the tenant at last known address and list the items that were left behind. Indicate that you will hold for 30 days. After 30 days dispose of the property. If claimed before the 30 days then you can charge a reasonable storage rate if you wish.
You can deduct for damage to the rental unit beyond normal wear and tear. So if the cleaning that you are referring to rises to the level of damage then you can charge for that. If it is not damage related then you can only charge for cleaning if you have that in your Nonstandard Rental Provisions document.
#29 by Kevin on June 13th, 2011
| Quote
Can a landlord deduct standard millage for scenario such as this:
Tenant damaged microwave and has agreed to pay for a new one. Tenant has also stated that landlord can go and buy one and deduct from security. The landlord travled a total of 45 miles to pick up microwave. Can this be deducted from the security?
Thanks!
#30 by Tristan R. Pettit, Esq. on June 13th, 2011
| Quote
Kevin — A landlord cannot withhold mileage costs from a security deposit in my view. That is not to say that a court not may allow it – but there is no legal basis for allowing it that I am aware of and I wouldnt take the chance of getting “dinged” by a court on that and having to pay double damages and atty. fees.
#31 by Neil on June 27th, 2011
| Quote
I have been reading your website and blog for the last 2-3 days. I moved froma rental property at the end of March. We were in their words great renters for 56 months. However, now that we have moved out and did not purchase their home, I recieved court papers for 3,200. They replaced linoleum flooring in the entire kitchen and are trying to get me to have to pay for it. They claimed that I ruined the flooring that was 30+ years old and already coming apart at the seam by the entryway. They have numerous other bogus claims. Guess one thing i am trying to find is a good source for information on life expectancy of flooring as I know it was not me that damaged it. Thanks!
The other thing is they did not submit the 21 day letter ( first documentation that I recieved from the landlord was court papers 77 days later) so I am thinking and hoping that the whole thing could be dismissed, but I want to be prepared for anything. Thanks!
#32 by Tristan R. Pettit, Esq. on June 27th, 2011
| Quote
Neil – Please understand that I can not give legal advice via this blog. However, I do have a blog post on theis blog that discusses the life expectancies of various household products including carpeting — but most likely this information would be established via an expert witness.
#33 by Bren on July 16th, 2011
| Quote
A tenant has 2 cats and left them unattended for over a month. There were 2 litter boxes overflowing with urine and crap. The entire main room was covered in cat urine, poop, and vomit. These people moved all of there stuff out because they were moved, but still rented for the rest of the month. I told them I was replacing the carpet right away (before their lease was up) because there is no way the apartment could be rented out the next month in the condition it was in. People would gag just by entering. Can these costs be deducted from their security deposit?
#34 by Tristan R. Pettit, Esq. on July 18th, 2011
| Quote
Please understand that I cannot give legal advice via this blog.
Deducting amounts from a tenant’s security deposit opens you up to being sued for double damages and atty. fees if your deduction is determined to be improper. So you should take care in making that decision.
Having said that, damages beyond normal wear and tear, can be deducted from a tenant’s security deposit.
There is also a published Wisconsin case dealing with a tenant committing “waste” by alowing their pets to use the rental unit as a litter box — in that case the landlord was awarded double damages due to the court deciding that the tenant committed “waste” to the landlord’s rental property. The case is Three and One Co. v. Geilfuss and the citation for the case is 178 Wis.2d 400 (Ct. App. 1993) — you should be able to find it on Google Scholar for free. You may want to take a look at that case and also consider sitting down with an attorney to evalaute your situation so that you can get legal advice.
T
#35 by Nick Palmer on July 26th, 2011
| Quote
Can my landlord deduct carpet cleaning costs to remove a stain? The stain was removed.
#36 by Tristan R. Pettit, Esq. on July 27th, 2011
| Quote
Nick — A landlrod is allowed to deduct the cost to repair damages from a tenant’s security deposit. I can not provide legal advise via this blog. But if a stain is considered to be damage – which I think it could — then that would be a proper deduction in my opinion – barring any other information or facts
T
#37 by Semiha Manthei on August 10th, 2011
| Quote
Tristan: Great blog; thanks for all the valuable information. I live out of state and use and agent to rent my condo. During the move-out walk, the agent notices long scuffs on the laminate flooring that weren’t there before (we have move-in checklist). My tenants admit they have used a shopping cart to carry out some boxes and this is noted on the move-out checklist. The agent took pictures of the scuffs which clearly shows the parallel lines throughout the room. One tenant sent me an email same day explaining how they used the shopping cart and how they couldn’t wipe off the marks and thought it would be better to leave them for the cleaner to take care of. The marks didn’t come off during cleaning. I told them I would bring in a flooring person to get advice and cost estimate if needed. The tenant wanted to be there during the estimate so I asked the agent to be there as well. I just received an email from the tenant, after their meeting, he’s telling me that the shopping cart marks were gone, the remaining marks were from before they moved in, and he would sue if I didn’t pay his deposit back in full. The agent also contacted me and confirmed that the tenant was denying causing the marks which were still there. In the meantime, the cost estimate exceeds their deposit amount as all the damaged planks need to replaced. Reading your previous comments I’m worried about making any improper deductions but I think it would be unfair if they got away with this. I’m not sure if he will really take me to the court or is bluffing, but if does, do I have a case? The 21-day period is up Monday 8/15, so I have to make a decision quickly.
Also, I read in several other posts about charging for missing window screens. My tenants told me the screens were lost during a stormy night. I’m guessing I can’t charge them for something that was not controllable by them, right?
#38 by Tristan R. Pettit, Esq. on August 12th, 2011
| Quote
Semiha — Great questions. As you have noted these issues often fall into a world of grey – nothing is black and white. Unfortunately you are asking me to give you legal advice which I cannot do through this blog.
You have reason to be concerned about any claims of improper deductions but you also should be reimbursed for any damage to your unit above and beyond normal wear and tear.
In order to properly evaluate this you would need to retain an attorney and let him/her review the photos and check in/out form etc etc — so that you can get proper advice that can be relied on.
Good luck
#39 by Carrie on August 21st, 2011
| Quote
Shouldn’t a tenant wash the carpets at least once a year? Wouldn’t it be considered neglect if a tenant doesn’t do at least a yearly deep cleaning? I’m asking because we had just put brand new carpet & freshly painted a unit. The tenant made the comment that everything is clean except the carpet, “We have lived here for 2 years!”. Is ground in dirt stain to the carpet considered out of the normal wear? Any advise would be great! Thank you!
#40 by Tristan R. Pettit, Esq. on August 29th, 2011
| Quote
Carrie — It depends on the specific facts (how much ground in dirt, location, etc) and the judge or court commissioenr that is reviewing your case. Normal wear and tear is not defined so each judge or commissioenr has their own view of when something is damage as opposed to normal wear and tear. Welcome to the ambiguities of landlord-tenant law. : )
#41 by Nikki on October 13th, 2011
| Quote
My tenant moved in and paid us directly an amount for their electric bills, and they were responsible for the heat. We had just bought the duplex (owner occupied on the upper half), and were told all of the bills were separate except for the electric. It turned out that although there were two meters for gas, all of the furnaces were mapped to the one tied to our account, and the only thing going to the tenants meter was their water heater. This was discovered two months after the tenants moved in. We discussed this with the tenants and they agreed verbally that their gas bills were very low and would be responsible for their part of the gas bills (half of heat used). They “wanted” to give us money towards the heat bill but never did, and I have numerous text messages from them stating that they agreed to pay for their half. Now it is time for their security deposit return, and they have still not paid any amounts toward their portion (even though we have requested a talk multiple times). Are the text messages I have enough to hold their portion of the gas bill? Thank you for any help!
#42 by Tristan R. Pettit, Esq. on October 13th, 2011
| Quote
Nikki — Thanks for your question. Please understand that I cannot give legal advice via this blog. You should sit down with a lawyer and have him or her evaluate your case fully so that you can obtain legal advice.
From an evidentiary standpoint, yes, a series of texts may establish a “meeting of the minds” such that a court could decide that you and your tenants agreed to X. I am not saying that is the case in your situation, but theoretically it can happen. One would need to review all of the texts, the timing of the texts etc. in order to advise you in more detail.
Another area of concern however is that it is Wisconsin law (Wisc. Admin Code, ATCP 134.04(3) that if utilities are not included in the rent amount and are not separately metered, that it be disclosed how they utilities will be allocated. Since you were not aware that the utilties were not separately metered in your duplex, it is my assumption that how the utilities would be allocated between you and your tenants was not addressed in your rental agreement. So that may be an issue to explore further when you analyze how to proceed.
I hope that helps a bit to guide you but that is the best I can advise you generally on the issues you ask about.
#43 by Katie on November 1st, 2011
| Quote
Question- If a tenant signs a lease that contains a six-month automatic renewal clause, but the tenant claims he had no idea the clause existed, is the landlord able to enforce this clause against the tenant even though the landlord posted a note about the automatic renewal clause on a door in the apartment where the tenant was unable to see this note?
#44 by Tristan R. Pettit, Esq. on November 2nd, 2011
| Quote
Katie — I cannnot give legal advice via this blog but I can discuss the law in Wisconsin regarding Automatic renewal clauses.
The law in Wisconsin is pretty clear that in order to enforce an automatic renewal clause that the landlord is required to have given the tenant a separate written reminder of the automatic renewal clause at least 15 days but no more than 30 days on top of whatever other notice requirement is set forth under the rental agreement.
For instance, if you have a 1 year lease that automatically renews for another year and requires a 60 day notice to vacate by the tenant, then the landlord — in order to be able to legally enforce the automatic renewal clause against the tenant — must have served the tenant with a written reminder of the automatic renewal provisions at least 75 days (60 days +15 days) but no more than 90 days (60 days + 30 days) before the end of the initial lease term.
This requirement of the separate notice is set forth in Wis. Stats. 704.15 and Wisc. Admin. Code, ATCP 134.09(3).
So it would depend on when you posted the notice on the tenant’s door, what the notice stated, and whether or not a court would consider posting of the notice on the tenant’s door sufficient to meet the requirements of the above statute and regulation. Sec. 704.15 specifically says that the notice must be served as required in Wis. Stat. 704.21 (regarding how to serve notices) — so according to 704.21 posting is only allowed after “reasonable diligence” has been made to personally serve or substitute serv the tenant, and then the posting must also be mailed to the tenant’s last known addres.
You should refer to my blog post on how to legally serve a 5 day notice – as that thoroughly explains how notices — including notices of an automatic renewal clause — should be served.
You should consult with an attorney prior to attempting to enforce tthis automatic provision against your tenant.
#45 by Sydney on November 3rd, 2011
| Quote
If a landlord charges for damages out of your security deposit do they have to repair the damages they say they are charging for? Or can they decide to not make the repairs and let the next tenant move-in with the existing damages?
I have a friend that lived in a house for two years, he did not receive any of his security deposit back but did receive an itemized list of damages (all were accurate) BUT I moved into the unit after him and was well aware of the damages he was charged for and they were never repaired. I personally don’t think it is fair for a landlord to charge $2,100 in damages and never make the repairs.
Is there any law that says a landlord has to make the repairs they are charging for out of the security deposit?
THANKS!!!
#46 by Tristan R. Pettit, Esq. on November 3rd, 2011
| Quote
Sydney — Great question. I already have a post on that exact issue — please see my May 5, 2011 post
#47 by Sydney on November 4th, 2011
| Quote
Hi Tristan – I do not see a post for May 5, 2011. Is it on a different site? thanks!
#48 by Tristan R. Pettit, Esq. on November 4th, 2011
| Quote
Sydney – it is there – here is the link
http://petriestocking.com/blog/2011/05/05/must-a-landlord-actually-repair-tenant-caused-damage-before-the-landlord-can-deduct-the-cost-from-a-tenants-security-deposit/
Or you can click on the topic of security deposits on the right hand side of my blog and it is the second entry
#49 by Diane on November 18th, 2011
| Quote
We have rented from our LL for over two years. We had a one year lease that then went month-to-month. The LL wrote “60 days” on the front of the lease near the area where it states that this is a one year lease then m2m. We gave him verbal notice on 10/18 that we would be moving on 12/1. At that time, he told us that we were supposed to give 60 days notice. However, as I understand it, once we went m2m, we only have to give 28 days notice. Can he withhold part of our security deposit for not giving 60 days notice?
#50 by Tristan R. Pettit, Esq. on November 22nd, 2011
| Quote
You can be under a month to month tenancy with a 60 day notice required. If that is what your rental agreement states then the landlord can hold you to that. My personal rental agreements that I use with my tenants are month to month with 60 days notice.