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What must a landlord do to (legally) withhold some or all of a past tenant's damage deposit (aka security deposit)? I've heard (from the tenancy office) that a landlord cannot arbitrarily withhold the damage deposit, but what does this actually mean?

I guess my first question is: When is a tenant held financially responsible for damage? For example, if a rock is thrown from outside and breaks the window, it wouldn't be the tenant's fault. But if the tenant spills something that stains the carpet, then it may be (though even this might be a gray area if the carpets were so old as to be due for replacement anyway).

When a tenant moves out, what prevents the landlord from breaking something himself and claiming it was the tenant; or putting a bunch of garbage into the house, claiming the tenant left it, and charging for the delivery to the dump?

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A tenant can only be held liable for any damage that is caused during the course of the tenancy if not pre-existing (marked by notation in your lease, or photos upon move-in). If you cause damage you must pay reasonable cost to rectify the damage. I feel comfortable saying that as a rule, landlords are not typically piling trash in the house or breaking things to get your deposit. Logically, they'd still have to have the trash removed and fix any damages, even if they use your deposit, so there is not a whole lot to gain by doing that. Landlords tend to not want their properties damaged; they want the unit re-rented. Typically, compared to the monthly value of the unit, your deposit is small in comparison. I have heard people argue this type of thing in court and they inevitably lose.

Landlords, however, cannot act arbitrarily in keeping your deposit. This just means they must be reasonable in what they keep, if anything. If there is a hole or two from nails, they cannot charge to re-paint. However, if you trash the walls or if you paint a wall hot pink, they can. If a neignbor kid breaks the window, you'd need to notify the landlord before the day you move out, and take actions to mitigate the damage (ie. speak to the parents of the kid, file a police report, or whatever else supports you landlord in getting it paid for by a third-party)."Reasonable" generally means that unless you caused damage to the apartment and you abide(d) by the terms of your rental agreement/lease, your landlord must refund your deposit along with interest from the day you moved in.

Keep in mind, if you have a contract, that instrument will direct the terms of what you must do to ensure your deposit is returned. If you don't have a writing, local housing laws will dictate the terms of a tenancy-at-will. With these, the same rules apply to your deposit, except there are not special conditions except those set by the law, and you can move anytime with 30 days notice from the last paid rent. Otherwise, your rental term will determine when you can leave with no loss of deposit or other financial damages.

So long as you proceed both during tenancy and upon departure, in keeping with your agreement (which is controlling so long as it is in keeping with the laws), you are entitled to a full refund - usually in at maximum of 30 days, or earlier if your lease/agreement sets it out as such. Many landlords will return the deposit after the move-out walk through if you've completed the entire term of your lease and owe no back rent or late fees. Walkthrough is integral to getting your deposit back; be sure to take photos.

If you do have a lease and regardless, you leave early, there will be an early abandonment/termination fee - even with prior notice. The fee for this will usually be either a lump sum, or the amount due under the lease had you stayed; if you owe early termination fees your deposit can be kept to help fulfill this amount potentially due. If you have a pet, there may be a non-refundable pet deposit; some leases have a non-refundable cleaning fee regardless of pets; some require you leave the apartment broom-swept and generally clean; some leases charge storage or trash removal for anything left behind. No matter what happens, when your tenancy ends, you should walk through the apartment with your landlord, whereby he he goes through it with you and afterward he signs a statement that you walked through together and there were either no damages-or if there are, that they're determined and agreed to at that time. If there is one that you disagree on, mark it as such and try to negotiate how much you'll be charged for it, or if you can fix it yourself. If you cannot agree, he can keep the cost of fixing it, and then your only recourse is to sue to have it returned.

If your landlord keeps any portion of your deposit, he must send an itemized record of what what kept and why, and the costs for each damage individually itemized. With that, he must return any reminder. here are things that a landlord can never do. Your deposit cannot be kept "unreasonably". It would be unreasonable to withhold any portion of your deposit if you've not damaged anything and owe no financial reparations. It would be unreasonable if you owe no money.

There are things that a landlord can never do so as not to keep your deposit "unreasonably". It would be unreasonable to withhold any portion of your deposit if you've not damaged anything and owe no financial reparations. It would be unreasonable if you owe no money on the lease. A landlord cannot use your deposit to refresh the apartment or for normal wear and tear that occurs under normal use and care. So, for example, if you live there for 5 years you cannot be charged for carpet or paint because it would've been worn with normal careful use - whereas, if those items are in bad shape and you moved in only only one year prior (assuming both were new or in great condition), well then your deposit could be used for those damages.

In some jurisdictions, if you can prove it (or any portion of it) was kept intentionally wrongfully (even if they just couldn't afford it) you can get treble damages (3x what is owed). But, you must show that you ou were due the money back and notice either wasn't given to keep it, or it misrepresented the damages - either way, that your money was not returned. The notice to keep any portion must come within the timeframe set out by agreement or housing law in your area.

  • Are you sure about the part where the landlord must provide you with reason for withholding the rent? I know where I live, the landlord doesn't have to legally return the damage deposit, until the tenant requests it in writing (not e-mail/text etc.) and then the landlord has a month to return it. If he doesn't he can be charged double. So for example if the landlord claims he's withholding the whole damage deposit for a small crack in a window, would this be not allowed if he just briefly said this in a text message? – Alex Sep 21 '15 at 21:37
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Since you tagged Canada as the region, I'm adding an answer that might not fully answer your question, but could definitely lead a complete answer straight from the horse's mouth with a simple phone call.

I'm going to use Ontario as a more specific point of reference, since it's what I'm familiar with. In Ontario, anything to do with your lease or rental agreement (residential) is ultimately governed by the Residential Tenancies Act. Disputes such as yours used to be brought to the Ontario Rental and Housing Tribunal, where you could formally make an accusation and the landlord would have to defend themselves or vise versa.

This tribunal would, after hearing all evidence, rule for or against and could even award damages, refunds etc. At least when I used to go through this process, there were no fees that I recall (yay Canada, let's just make our future generations pay for it). However, things appear to have changed, and this tribunal appears to have been assimilated into a massive collection of tribunals.

So to answer your question as best I can, this is the normal process. You have a lease agreement where you've given over money as a security deposit. You've given it over. A situation arises where the landlord believes that under the agreement, they have the right to keep the money. You phone up the tribunal, give them the situation, ask about filing a claim against the landlord, proceed as directed, let them judge.

Your last question about what prevents the landlord from simply lying I think is already answered. They can be dragged before a tribunal at their own expense, a tribunal which has the power to hit them where it hurts, their wallet. Under scrutiny, they would have to commit fraud against a lower court and get away with it. There's a huge deterrent there, even though the punishment for such a thing in Canada is probably no hockey for a week.

As a final note, when you call up these tribunals, they are there to serve the public for free. That's you. You don't necessarily need a lawyer, as they are tasked to decipher and communicate the letter of the law insofar as it concerns you in your circumstances. Abuse it.

Ask lots of questions. It's more than likely that your landlord put illegal terms in the lease. Maybe the security deposit itself was illegal, maybe the amount was. Asking questions, you'd find out things like the fact that in Ontario (last time I checked), landlords are required to pay interest when you terminate tenancy on your last month's rent deposit. So maybe he not only owes you back your money, but that plus some. Asking lots of questions will lead to knowledge of power that you would of otherwise not known you had. In this case it's free, so take as much as you can.

Lastly, I'm Canadian so I reserve to the right to poke fun. :)

Edit
You mentioned in a previous answer that you were in B.C. The appropriate link for you is this. You can find everything you need from contact information to ask questions, to guides on how to file a dispute to have your case heard.

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    Thanks. In BC these claims are dealt with through an arbitrator of the Residential Tenancy Branch, which is really week and can't enforce it's decisions. So if someone refuses to comply with the decision of the arbitrator, the only way to get them to pay is sue them in small claims court. It sounds like in Ontario the tribunal can actually force money out of someone? – Alex Sep 23 '15 at 4:52
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With something like this, the letter of the law is not usually too important; what is important is understanding what happens in reality. What happens in reality is the following:

(1) The landlord finds some excuse to keep your money and maybe gives you a note reading to that effect.

(2a) 99% of the time the tenant will walk away and lose their money; end of story.

(2b) The tenant goes to the county court house and fills out a small claims lawsuit for the amount the landlord stole, plus time spent in court, plus fees, plus aggravation, plus anything else he can think of.

(3) On the day in question both parties show up in packed courtroom filled with screaming babies. After listening to the clerk read irrelevant mumbo jumbo about unrelated cases for 2 hours, the clerk says "Do Mr. Breakeverthing and Mr. Pennypincher want to arbitrate, if so raise your hand." Then you and the a-hole both raise your hands.

(4) You both then go to this dingy room with a highly annoying social-worker type in it (the "arbitrator"). You can safely ignore that person.

(5) You then tell Mr. Pinnypincher: "If you give me money in cash right now I will sign the arbitration, otherwise we go back in the giant room with the screaming babies and wait for another 3 and 1/2 hours."

(6) Mr. Pinnypincher will then fork over the money, curse your family and storm out of the room.

That is what happens in reality.

  • So for that has been my experience. Where I live it's even worse because the small claims court has off loaded the responsibility to a "residential tenancy court" so even if this court finds a party guilty, they have no way of enforcing the penalty (i.e. making someone pay up). If this happens then the matter has to be taken to small claims court and that's where you're answer begins. – Alex Sep 23 '15 at 4:49
  • @alex Does this answer your question? I was about to delete it as not answering your question, because the small amount of legal information it contains is a rant, or is wrong - you can't claim for time in court or aggravation, in Canadian (or most) small claims courts. Well, you could, but you wouldn't get it. You might have a favourable costs order made against the other party. But even then not all of your costs tend to be recovered. – jimsug Dec 29 '15 at 0:43
  • @jimsug Back in September the OP indicated that my answer at least partially answered his questions because he wrote "So far that has been my experience" so obviously he has found my answer useful at some level. – Cicero Dec 29 '15 at 1:08
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    Everyone has this wrong. Small claims court has nothing to do with it. In Canada, you go to specially formed tribunals that govern these matters and they judge. – user900 Dec 29 '15 at 1:15

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