Security Deposit Can Landlord Do This?

[RandyMann]

Jurisdiction

Virginia

Hello all,

I moved out of my rental in late February. Since my landlord is living in another state, he sent a representative to do the walk-through with me prior to our moving out. All seemed well and good, and through text message, my landlord said he would send me my security deposit soon. I had also asked for the remainder of the pro-rated rent for Feb, since we moved out 3 days before the end of the month. He agreed.

It took 50 days after moving out for me to finally receive a check, and it is $600 less than the amount I was expecting. Mind you, during the past 50 days, I was constantly checking in with him via text asking about my security deposit. All his replies were pretty much the same: "I'll get it to you asap" ...there was not a single word mentioned about keeping any of my security deposit for anything, it was all "I will get you your money". I received no itemized list for any deduction.

When I saw the check on the 50th day, I texted him immediately asking why it is not for the full amount, and why I did not receive an itemized list as per our lease. He has not replied since (that was last Friday).

What should my next step be? Can landlord still keep a portion of my security deposit, even though he returned it late AND refused to provide me with a list of deductions? I have all our correspondence through text messages; is that enough evidence, in case I end up taking him to court? Also, can I go ahead and cash the check he sent me, or does that forfeit my right to the remainder of my security deposit + 3 days rent?

Thanks in advance for your help.

 

[adjusterjack]

The problem with renting in Virginia is that the Virginia landlord tenant statute doesn't apply to single family dwellings UNLESS the landlord owns more than two such rentals. See 55-248.5 A. 10:

§ 55-248.5. Exemptions; exception to exemption; application of chapter to certain occupants

If the landlord does own more than two then the following security deposit statute applies:

§ 55-248.15:1. Security deposits

If he does not own more than two you'll have to rely on the security deposit terms and conditions of your written lease.

If you have no written lease you will have to convince a judge that the landlord's actions are unconscionable and against public policy.

Whether your "evidence" is enough to accomplish that is anybody's guess.

 

[RandyMann]

If he does not own more than two you'll have to rely on the security deposit terms and conditions of your written lease.

Thank you for your reply. We did have a lease, and it seems to be a pretty standard lease agreement in VA...here is the portion about security deposit in our actual lease:

SECURITY DEPOSIT. Tenant agrees to pay the sum of $1800.00 (1600 + 200 non refundable pets) as security deposit. This sum will be due when this lease is signed by tenant. The security deposit will be held by Landlord to secure Tenant's full compliance with the terms of this Lease. During the term, until 30 days prior to the termination or expiration of this Lease, if Landlord determines that any deductions are to be made from the security deposit for charges arising under this Lease or by law, Landlord will give written notice to Tenant of such deduction and the reason for such deduction within 30 days of the time Landlord determines that such deduction should be made, and Tenant agrees to pay Landlord such sums as may be necessary to offset such deductions to replenish and maintain the security deposit in the amount set forth above. Within 30 days after the termination of this Lease, Landlord may apply the security deposit and any interest required by law to the payment of any damages Landlord has suffered due to Tenant's failure to maintain the Premises, to surrender possession of the Premises thoroughly cleaned and in good condition (reasonable wear and tear excepted), or to fully comply with the terms of this Lease, and any balance, if any, to unpaid rent. Landlord shall provide Tenant with an itemized accounting, in writing, showing all such deductions and the reasons for such deductions. Within this 30 day period, Landlord will give or mail to Tenant the security deposit, with any interest required by law and minus any deductions. To assist Landlord, Tenant shall give Landlord written notice of Tenant's new address before Tenant vacates the Premises. Any security deposit held by Landlord for more than 30 days will accrue interest at an annual rate equal to [one percent below] the Federal Reserve Board discount rate as of January 1 of each year. Landlord will maintain itemized records of all security deposit deductions and these records may be inspected by Tenant, his authorized agent or attorney, during normal business hours. However, when two years have passed from the time a deduction was made, Landlord may destroy the record of that deduction. If Landlord sells or otherwise transfers all or any interest in the Premises during the term of this Lease, Tenant agrees that Landlord may transfer the security deposit, plus any interest required by law, to the purchaser who in such event shall be obligated to comply with the provisions of this section.

RE: evidence...I intend to submit a copy of this lease to the court, as well as text messages between me and landlord documenting my numerous attempts to collect my security deposit within 45 days after moving out, replies by landlord acknowledging he owes it to me plus 3 days in Feb., and no mention of deductions from security deposit

 

[mightymoose]

Your next step, if you can't resolve this directly with the landlord, is to file a case in small claims court. Since the landlord is out of state you may have trouble serving papers, but there are companies you can hire to take care of that for you.
As you describe it you likely have a good argument to make, but getting the landlord to show up to court, or even to pay, could be more trouble.
You aren't helpless here. You just have to jump through hoops.

 

[RandyMann]

Your next step, if you can't resolve this directly with the landlord, is to file a case in small claims court. Since the landlord is out of state you may have trouble serving papers, but there are companies you can hire to take care of that for you.
As you describe it you likely have a good argument to make, but getting the landlord to show up to court, or even to pay, could be more trouble.
You aren't helpless here. You just have to jump through hoops.

Thank you for weighing in, mightymoose! Any thoughts on cashing the initial check he sent? I am worried if I do, he will take it as acknowledgement that I accept the amount. At the same time, I am worried if I don't cash it soon, he might put a stop payment on it. Not sure if it makes a difference, but aside from the memo line specifying it is for security deposit, there is no other indication on the check that is is a full or final payment or anything similar...

 

[adjusterjack]

Any thoughts on cashing the initial check he sent?

I suggest not cashing it. Unfortunately, holding it is the same as accepting it so I suggest you mail it back to him with written notice that he breached the lease and demand the full amount of the deposit if you believe that you are entitled to it.

I am worried if I do, he will take it as acknowledgement that I accept the amount.

Yes, I believe that would be acceptance of a settlement and that settlement would be enforceable.

there is no other indication on the check that is is a full or final payment or anything similar...

Doesn't matter.

 

[d1amund]

Do some research into accord and satisfaction law in your state. As adjusterjack stated, the landlord sending you the check for the lower amount with the words "security deposit" (the accord) and you accepting/cashing the check (the satisfaction) could be determined that you are in agreement with the lower amount the LL has refunded you as fully satisfying their obligation to refund your deposit.

 

[adjusterjack]

Do some research into accord and satisfaction law in your state.

Here's the VA statute:

§ 8.3A-311. Accord and satisfaction by use of instrument