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landlord won't give security deposit back Security Deposit

Discussion in 'Other Residential Landlord & Tenant Issues' started by msplaced1, Apr 3, 2015.

  1. msplaced1

    msplaced1 Law Topic Starter New Member

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    when my husband called our former landlord for the security deposit, a week after we moved out, she said that there were small baggies left on the carpet and that the air ducts had to be cleaned because of the incense we burned and that she wasn't giving back our deposit. The place was spotless when we moved. We are taking her to small claims court. If she tells the judge there was suspected drug use, which there wasn't, will that be grounds for her winning the case?
     
  2. army judge

    army judge Super Moderator

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    You'll just have to appear, plead your case, see what the judge says. Any answer would be a guess, so hold on the judging hour cometh soon.
     
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  3. Betty3

    Betty3 Super Moderator

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    There is no way for us to know what any individual judge will decide. You will have to sue & see.
     
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  4. mightymoose

    mightymoose Moderator

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    Rather than worry about that research your state laws about these deposits. There is a specific time frame in which the deposit must be returned, and if not returned an itemized list of the deductions is supposed to be provided by the deadline. Regardless of what your landlord might say in court, if the rules aren't followed and you are prepared to point it out then you just might see a full refund.
     
  5. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    The landlord will need to bring evidence of what the security deposit was used to accomplish. Be prepared with a copy of Nebraska security deposit law at your disposal.

    Nebraska UNIFORM RESIDENTIAL LANDLORD TENANT ACT
    Nebraska Revised Statute 76-1416
    76-1416. Security deposits; prepaid rent.

    (1) A landlord may not demand or receive security, however denominated, in an amount or value in excess of one month's periodic rent, except that a pet deposit not in excess of one-fourth of one month's periodic rent may be demanded or received when appropriate, but this subsection shall not be applicable to housing agencies organized or existing under the Nebraska Housing Agency Act.

    (2) Upon termination of the tenancy, property or money held by the landlord as prepaid rent and security may be applied to the payment of rent and the amount of damages which the landlord has suffered by reason of the tenant's noncompliance with the rental agreement or section 76-1421. The balance, if any, and a written itemization shall be delivered or mailed to the tenant within fourteen days after demand and designation of the location where payment may be made or mailed.

    (3) If the landlord fails to comply with subsection (2) of this section, the tenant may recover the property and money due him or her and reasonable attorney's fees.

    (4) This section does not preclude the landlord or tenant from recovering other damages to which he or she may be entitled under the Uniform Residential Landlord and Tenant Act.

    (5) The holder of the landlord's interest in the premises at the time of the termination of the tenancy is bound by this section.

    Annotations:

    The 14-day limitation language in subsection (2) of this section refers to the time allowed the landlord to return the deposit, not the time in which a demand must be made by the vacating tenant. Hilliard v. Robertson, 253 Neb. 232, 570 N.W.2d 180 (1997).

    Under subsection (3) of this section, in order to recover a deposit plus an attorney fee, tenant must establish that landlord did not comply with a demand for return of the security deposit. Mason v. Schumacher, 231 Neb. 929, 439 N.W.2d 61 (1989).

    Where a tenant prevails in an action under subsection (2) of this section against the tenant's landlord, the tenant is entitled to recover reasonable attorney fees under subsection (3) of this section as a matter of right; it is not at the discretion of the trial court. However, in order to recover fees under subsection (3) of this section, the tenant must present evidence of the tenant's attorney fees such that a trial court can make a meaningful award. Lomack v. Kohl-Watts, 13 Neb. App. 14, 688 N.W.2d 365 (2004).

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    Typically there are penalty provisions for abuse which I didn't initially see. However you should be able to recover all court costs and potentially any costs involved in your appearance for non-compliance. At the very worst, make a policy argument -- if the court doesn't allow recovery of the costs to bring suit, abused tenants will never bring a case to court to recover. This is why landlords will abuse the security deposits given to them because the cost to recover will always not be worth the effort.

    Good luck.
     

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