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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87776
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My former landlord wants to keep our security deposit for damage

Customer Question

My former landlord wants to keep our security deposit for damage she says was done to the apartment. The damage she's referring to pre-existed our move-in. We want to take her to court because we know that she doesn't have proof that we created the damage. However, we also don't have proof that the damage pre-existed the apartment.

So who has the burden of proof when it comes to taking the security deposit?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello, my name is Ely. Welcome to JustAnswer. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not necessarily to tell you what you wish to hear. Note: there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. First, can you please tell me exactly what kind of damage is she claiming?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.
I think I already replied to this, but my cpu says I didn't. Anyway, I'll try again.

She's claiming my full security deposit for a water stain on the hard-wood floors of my old apartment. Shortly after moving in, I wrote her a letter mentioning that there were numerous marks on the floors, but I wasn't specific about the stain. And I don't have any pictures. So, if I take her to court, I'm worried it will still be her word against mine. And so who wins in that case? Neither of us have concrete proof that the stain pre-existed my tenrue in the unit.

So who has the burden of proof when it comes to deciding who's to pay for the damage?

One more thing: the landlord wants to charge me for holes in the wall left from a few wall hangings. I already filled the holes with spackle, but she wants to do it again. Does she have a right to take my money for this? And if so, how much? I suspect she's going to try to fill all of the dings in her walls (that pre-existed my tenure) with my security deposit.
Expert:  Ely replied 1 year ago.
Thank you for your reply, Chris.

So who has the burden of proof when it comes to deciding who's to pay for the damage?

In theory, it is the Plaintiff who has the burden of proof by preponderance of the evidence, meaning 51% or over. This applies to landlord/tenant issues as well. So you'd have the burden of proof to show that the stain was not there.

Of course, this is very subjective. Judges tend to give tenants a little more leeway in many cases, as landlords are often proven to be exaggerating the truth shall we say, so it is not unusual for a Judge to grant you a judgment even if it is your word against hers - it is merely who is more believable. Of course, this is why the practice of photographing/video-taping all parts of the property before and after move out is so important.

One more thing: the landlord wants to charge me for holes in the wall left from a few wall hangings. I already filled the holes with spackle, but she wants to do it again. Does she have a right to take my money for this? And if so, how much? I suspect she's going to try to fill all of the dings in her walls (that pre-existed my tenure) with my security deposit.

This depends on whether the spackle was enough to have the property be back to where it was before the rental period, minus natural wear and tear. So it all depends on specifically how the spackle was put in - it is subjective. Were the holes even noticeable anymore, for example? Unfortunately, that - too - is up to the Judge.

Without the benefit of photographs, it is your word against the landlord's. But as stated, even if the burden is on you since you are the Plaintiff, often, the Judge gives tenants some leeway.

Surely, you prefer that I tell the truth rather than what you wish to hear. Because it reflects very poorly on me unless you press one of the top three faces, keep this in mind when rating my and please do not punish me for being honest. I understand that this may not be easy to hear, and I empathize.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups for free after rating. My ultimate goal is your complete satisfaction.

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