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I have a question about getting my security deposit back…

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I have a question...

I have a question about getting my security deposit back from my landlord and what constitutes "damages" to the property.

Lawyer's Assistant: Because laws vary from place to place, can you tell me what state the property is in?

TN

Lawyer's Assistant: Has any paperwork been filed?

As in have I filed paperwork at the courthouse?

Submitted: 1 year ago.Category: Real Estate Law
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Answered in 5 minutes by:
6/10/2017
Real Estate Lawyer: RealEstateAnswer, Lawyer replied 1 year ago
RealEstateAnswer
Category: Real Estate Law
Satisfied Customers: 31,924
Experience: 10+ years in handling Leases, Landlord-Tenant, Foreclosures,Mortgages, and Eviction cases
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Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help with your question and concern

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Customer reply replied 1 year ago
Ok...
Real Estate Lawyer: RealEstateAnswer, Lawyer replied 1 year ago

Good morning. I certainly understand the situation and your concern. A tenant needs to leave the rental in the same condition as when they took possession, less normal wear and tear. If they have done that, they would be entitled to their security deposit back. Now, if the landlord has deducted and imposed a claim on the deposit, they can object to it and try and settle with the landlord and resolve this and if it can not be done, proceed and sue the landlord to recover.

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Customer reply replied 1 year ago
What constitutes "normal wear and tear" ? We left the property in virtually the same condition that we received it in. There were some scuff marks on some of the walls, but we filled in all of the holes and even repainted. The landlord has already painted the entire unit and insists that we used a different shade of paint on the walls, although the differences were slight. Do some scuff marks on the walls constitute "damage"?
Real Estate Lawyer: RealEstateAnswer, Lawyer replied 1 year ago

They would be minor in nature and the cost for the landlord to clean them or remove them, should not be much. Normal wear and tear would be faded paint, over the years or carpet, that is simply worn out, from normal usage. How much are they trying to deduct and impose?

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Customer reply replied 1 year ago
I believe he's going to deduct the entire security deposit of $1800. He basically repainted the entire unit and plans to keep my security deposit for that.
Real Estate Lawyer: RealEstateAnswer, Lawyer replied 1 year ago

The landlord can not simply repaint the entire unit, unless there is a legal basis for it. If the issue is the color and that it was different then what was originally there, it would be up for a Judge to decide, based upon the evidence presented. You shared that there were difference, although slight, so the Judge would need to determine if this was necessary and proper or the landlord is/was just trying to repaint it for new tenants, at your expense. Below is the TN statute which controls and you should review it to make sure the landlord complies with the law or else that could waive their right to impose the claim and need to return the balance.

Tenn. Code Ann. § 66-28-301 (2015) 66-28-301. Security deposits. (a) All landlords of residential property requiring security deposits prior to occupancy are required to deposit all tenants' security deposits in an account used only for that purpose, in any bank or other lending institution subject to regulation by the state or any agency of the United States government. (b) Except as otherwise provided in subdivision (b)(2)(B), the tenant shall have the right to inspect the premises to determine the tenant's liability for physical damages that are the basis for any charge against the security deposit. An inspection of the premises to determine the tenant's liability for physical damages that are the basis for any charge against the security deposit and the landlord's estimated costs to repair such damage shall be conducted as follows: (1) (A) Upon request by the landlord for a tenant to vacate or within five (5) days after receipt by the landlord of written notice of the tenant's intent to vacate, the landlord may provide notice to the tenant of the tenant's right to be present at the inspection of the premises. Such notice may advise the tenant that the tenant may request a time of inspection to be set by the landlord during normal working hours. The landlord may require the inspection to be after the tenant has completely vacated the premises and is ready to surrender possession and return all means of access to the entire premises; provided, that the inspection shall be either on the day the tenant completely vacates the premises or within four (4) calendar days of the tenant vacating the premises. If the landlord provides written notice of the tenant's right to be present at the landlord's inspection and the tenant schedules an inspection, but fails to attend such inspection, the tenant waives the right to contest any damages found by the landlord as a result of such inspection by the landlord; provided, that notice of the tenant's waiver upon such circumstances is set out in the rental agreement. (B) If a tenant requests a mutual inspection as provided in subdivision (b)(1)(A), the landlord and tenant shall then inspect the premises and compile a comprehensive listing of any presently ascertainable damage to the unit that is the basis for any charge against the security deposit and the estimated dollar cost of repairing the damage. The landlord and tenant shall sign the listing. Except as provided in subsection (g), the signatures of the landlord and the tenant on the listing shall be conclusive evidence of the accuracy of the listing. If the tenant refuses to sign the listing, the tenant shall state specifically in writing the items on the list to which the tenant dissents. (2) (A) If the tenant has acted in any manner set out in subdivisions (b)(2)(B)(i)-(vi), the landlord may inspect the premises and compile a comprehensive listing of any presently ascertainable damage to the unit that is the basis for any charge against the security deposit and the estimated dollar cost of repairing the damage without providing the tenant an opportunity to inspect the premises; provided, that the landlord provides a written copy, sent by certificate of mailing to the tenant, of the listing of any damages and estimated cost of repairs to the tenant upon the tenant's written request. (B) The tenant shall not have a right to inspect the premises as provided in this section if the tenant has: (i) Vacated the rental premises without giving written notice; (ii) Abandoned the premises; (iii) Been judicially removed from the premises; (iv) Not contacted the landlord after the landlord's notice of right to mutual inspection of the premises; (v) Failed to appear at the arranged time of inspection as provided in subdivision (b)(1); or (vi) If the tenant has not requested a mutual inspection pursuant to subsection (b) or is otherwise inaccessible to the landlord. (c) No landlord shall be entitled to retain any portion of a security deposit if the security deposit was not deposited in an account as required by subsection (a) and a listing of damages is not provided as required by subsection (b). (d) A tenant who disputes the accuracy of the final damage listing given pursuant to subsection (b) may bring an action in a circuit or general sessions court of competent jurisdiction of this state. The tenant's claim shall be limited to those items from which the tenant specifically dissented in accordance with the listing or specifically dissented in accordance with subsection (b); otherwise the tenant shall not be entitled to recover any damages under this section. (e) Should a tenant vacate the premises with unpaid rent or other amounts due and owing, the landlord may remove the deposit from the account and apply the moneys to the unpaid debt. (f) In the event the tenant leaves not owing rent and having any refund due, the landlord shall send notification to the last known or reasonably determinable address, of the amount of any refund due the tenant. In the event the landlord shall not have received a response from the tenant within sixty (60) days from the sending of such notification, the landlord may remove the deposit from the account and retain it free from any claim of the tenant or any person claiming in the tenant's behalf. (g) Nothing in this section precludes the landlord from recovering the costs of any and all contractual damages to which the landlord may be entitled, plus the cost of any additional physical damages to the premises that are discovered after an inspection that has been completed pursuant to subsection (b); provided, however, that costs of any physical damage to the premises may only be recovered if the damage was discovered by the landlord prior to the earlier of: (1) Thirty (30) days after the tenant vacated or abandoned the premises; or (2) Seven (7) days after a new tenant takes possession of the premises. (h) Notwithstanding subsection (a), all landlords of residential property shall be required to notify their tenants at the time such persons sign the lease and submit the security deposit, of the location of the account required to be maintained pursuant to this section, but shall not be required to provide the account number to such persons.

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Customer reply replied 1 year ago
Basically, we used the same paint, but because of the time between the original painting and the touch up, if you looked at it from a very specific angle, you could see a slight difference.
Real Estate Lawyer: RealEstateAnswer, Lawyer replied 1 year ago

I do not think that would amount to a basis to repaint the entire unit. You used the same paint and if this is a minor issue, it would be hard to justify the full claim on the deposit for the work that needs to be done. Moreover, if this was only for a few touch ups and not the entire unit, there is no reason to repaint the entire rental property.

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Customer reply replied 1 year ago
I'm having trouble uploading files. I wanted to send pictures of the scuff marks on the walls so you could see what the original "damage" was.
Real Estate Lawyer: RealEstateAnswer, Lawyer replied 1 year ago

I do understand. As I shared, it would be an issue for the Judge to decide, at the end of the day, if you sued for the return. Those photos are evidence for the Judge to consider. Before suing, you can object and oppose the claim and try and settle, if you desire but if not, you will need to file a lawsuit for the return of the deposit, if there was no basis for the landlord to repaint the entire rental.

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Customer reply replied 1 year ago
Ok, I've uploaded them to another image service and I'll paste the links here. The worse scuffs were all located in one place, the stairwell to the garage:
http://i.imgur.com/UkuCKTk.jpg
http://i.imgur.com/RtibsoC.jpg
http://i.imgur.com/TPoVDD4.jpg
Customer reply replied 1 year ago
I understand that a judge would need to decide, but I'd like to know from a lawyer's perspective if those marks look like legitimate "damage" or normal wear & tear.
Real Estate Lawyer: RealEstateAnswer, Lawyer replied 1 year ago
I am having a problem opening them.
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Real Estate Lawyer: RealEstateAnswer, Lawyer replied 1 year ago
Are you able to copy and paste the photo?
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Customer reply replied 1 year ago
They should just be links... can you not click on the links?
Customer reply replied 1 year ago
Here are the links again. You should be able to just click on them and go to the image hosting website where they are located:
http://i.imgur.com/UkuCKTk.jpg
http://i.imgur.com/RtibsoC.jpg
http://i.imgur.com/TPoVDD4.jpg
Real Estate Lawyer: RealEstateAnswer, Lawyer replied 1 year ago
The device I am using is not allowing me to open them. If you do not mind, I can look when I get to another device and respond at that time.
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Customer reply replied 1 year ago
Ok, thanks.
Real Estate Lawyer: RealEstateAnswer, Lawyer replied 1 year ago
My pleasure and sorry for the delay
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Real Estate Lawyer: RealEstateAnswer, Lawyer replied 1 year ago

I was able to see the photos. The marks would certainly allow the landlord to impose a claim, to clean them or remove them but I am inclined to believe the entire rental would not have to be repainted AND a magic eraser type of clearer or some touch up paint, could remedy that.

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Real Estate Lawyer: RealEstateAnswer, Lawyer replied 1 year ago

I just wanted to follow up and see if you had any other questions or needed me to clarify something. I am here to help, so please let me know. Thanks!

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