Q: I recently had a tenant move out and leave a mess in a house I own in Philadelphia. Nothing tragic, but a few holes in the wall, a very dirty house, and some things I had to dispose of. It took me a couple of days to deal with it, so I withheld $400 from the security deposit. The tenants fought me on this, and because I didn’t have proof of my expenses, I relented. What is the legally sound way to withhold funds from a security deposit?
A: The law in Pennsylvania allows a landlord to withhold a portion of the security deposit to cover repairs beyond “reasonable wear and tear.” But the burden of proof is on the landlord.
A tenant could be on the hook to pay for cleaning a dirty house, but that depends on other factors, such as the condition when the tenant moved in, repairs that weren’t done that could have impacted the upkeep of the unit, and the length of time a tenant lived there.
If a landlord wants to withhold a portion of the deposit, they must make a list of the repairs and the cost of those repairs, or cleanup and disposal costs, and deliver that to the tenant within 30 days of the end of the lease. The list must include the difference between the amount of the security deposit, plus any unpaid interest, and the cost of the repairs.
Failing to do this within 30 days means forfeiting the right to withhold the deposit or sue the tenant for damages. In addition, a tenant can then sue for twice the deposit amount.
Both parties should take photos of the home at the end of the lease (and ideally at the beginning) in case it gets to court.
“You can provide testimony, but it’s always nice, as a landlord or a tenant, to have written documentation,” said Rachel Garland, a comanaging attorney in the Housing Unit at Community Legal Services in Philadelphia.
In New York, the law is similar: Reasonable wear and tear is not a valid reason to withhold any portion of a security deposit. But New York landlords have only 14 days from when the tenant vacates the apartment to provide an itemized list of damages, or they forfeit the right to retain any of the deposit.
“If the landlord has to do the work without hiring a vendor, they should put an hourly rate to itemize the work done and justify retention of the deposit,” said Michael D. Capozzi, partner in the landlord and tenant practice at Tarter Krinsky & Drogin in New York.
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