A landlord must refund your entire security deposit immediately upon demand in the following situations:
- If the landlord fails to put your money in a bank account separate from the landlord's money;
- If the landlord does not give you a complete written receipt that has all of the information listed in the chart in the section called Security Deposit and Landlord's Responsibility; or
- If the landlord does not allow you to inspect the records she is required to keep under the security deposit law.
In each of these cases, you can demand your security deposit back and your landlord must return it to you even though you are still living in the apartment. The reason for this is that if your landlord does not properly account for your money, the law requires her to return it.
A landlord must also return your entire security deposit within 30 days from the day you move out of your apartment. There are two exceptions to this rule. First, if you are a tenant with a written lease, a landlord does not have to return your deposit until 30 days after the "end of the tenancy" as specified in the lease, even if you actually leave sooner.21 Second, your landlord can use your security deposit to pay for certain expenses. The next section tells you what these expenses are. Before you leave an apartment, give your landlord an address where she can send the security deposit and any interest.
While you are living in the apartment, you and the landlord may agree to use your security deposit to pay for rent or to repair any damage you or a guest may cause. Your landlord cannot use a security deposit in this way unless you and your landlord both agree to it. If you do, put this agreement in writing.
At the end of your tenancy, your landlord may deduct the following expenses from your security deposit:
- Any unpaid rent, unless you legally withheld it for bad conditions;
- Any unpaid increase in real estate taxes for which you are responsible under a valid tax escalator clause in your lease (for more information about tax escalator clauses, see Chapter 5: Rents); and
- A "reasonable amount necessary to repair any damage" caused by you, your family members, or guests, beyond any "reasonable wear and tear."22
Of course, any sentence with two "reasonables" in it invites argument. What one person thinks is reasonable, another person may think is unreasonable. Routine painting and cleaning, new locks, and minor carpentry are generally considered "reasonable wear and tear" and not chargeable as damage. The security deposit law is also supposed to protect you against phony or inflated deductions for damages. For example, the landlord cannot deduct for damages that she says existed when you moved in unless she can prove that she fixed them after you moved in and you caused the damage again. If the landlord wants to make a deduction for repairs, she must give you a complete list of the damaged items and the repair costs needed to correct them within 30 days of your moving out. The list must be signed and sworn to by the landlord "under penalties of perjury," and must be accompanied by written documentation of the actual or estimated repair cost.
If a landlord fails to do any of these things within 30 days of your moving out, the landlord gives up the right to keep any portion of your security deposit. If you end up suing your landlord for the deposit, the law says she is not allowed to argue that you caused damage. If she wants to accuse you of causing damage, she must bring a separate lawsuit.23 To repeat: Even if the damage is real, the landlord is not allowed to keep any part of your deposit unless she documents it with in 30 days and with written proof.
If you have reason to believe the landlord will withhold your security deposit and you are leaving your apartment in good condition, there are some common‑sense steps you can take to protect yourself.
Try to have the landlord inspect the apartment while you are present before you move out. Make sure that a friend is present to witness this inspection. As you walk around the apartment, make sure the landlord specifies what damage she intends to deduct from your security deposit. If you have a Statement of Condition, have copies of this statement ready showing what damage was present when you moved in. Do not be afraid to challenge the landlord if you have a basis for doing so. Be polite, but firm. If you reach a satisfactory agreement with the landlord about what should be deducted from your security deposit, get it in writing and make sure both of you sign it. Ideally, try to get your security deposit, or the portion agreed to by you and the landlord, back at that time.
If you think the landlord is being unreasonable about what is "reasonable wear and tear," take pictures of the areas that the landlord claims you have damaged. Take detailed notes describing the conditions and have a friend take notes, as well. If your landlord refuses to conduct an inspection with you, conduct one with a friend. Take pictures and make a list of damages and of improvements that you have made. Write to the landlord informing her of your inspection and your findings. If there is no damage, send your landlord a demand letter stating that you expect the entire deposit returned on the day you move out, and that you will collect it at her office on that day. Offer once more to let her inspect. If you still have reason to believe your landlord will unreasonably withhold your security deposit, consider withholding the last month's rent before you leave. If you have paid last month's rent in advance, you will have to withhold the last two months' rent in order to come out even.
If you do not receive your security deposit or an itemized list of deductions within 30 days of moving out, you have several options. You can send your landlord a letter requesting the immediate return of your security deposit.24 This is called a demand letter. See a sample at Form 5: Security Deposit Demand Letter.
The purpose of a demand letter is to give your landlord a chance to return your deposit without both of you having to go to court. It also informs the landlord that you have the right to triple the amount of your security deposit (referred to in the law as "treble damages") if she refuses to refund your money within 30 days of your moving out. If you send a demand letter, send it by both certified mail, return receipt requested, (so you can prove the landlord received it), and first‑class mail. Keep a photocopy for yourself.
If a landlord has failed to return your security deposit or has not given you a complete list of the damages she is deducting from your deposit within 30 days of your moving out, you can sue her for three times the amount of the deposit (treble damages). You are also allowed to sue her for any interest that she did not pay you during your tenancy and for the amount of money you have to pay an attorney to represent you. If you sue a landlord for your security deposit, the law does not allow the landlord to walk into court and accuse you of causing the damage. She must file her own separate lawsuit to make such a claim. The reason is that the security deposit law provides procedures for your landlord to claim and document damages within 30 days after you move out. If she does not follow these procedures and forces you to sue her, then she must take the consequences. The law does not allow her to use your lawsuit against you.
A court must award three times your security deposit in damages whenever a judge finds that a landlord has failed to:
- Return the security deposit or balance to which the tenant is entitled within 30 days of the end of the tenancy;
- Properly deposit a security deposit in a bank account separate from the landlord's funds and "protected from creditors"; or
- Transfer a security deposit to a new owner.
A landlord cannot use the fact that she did not know the law as a defense. In most cases, you can sue your landlord for the security deposit in the Small Claims session of your local District Court, Housing Court, or Division of the Boston Municipal Court. While small claims suits are limited to claims of no more than $2,000, as long as your security deposit was $2,000 or less, you can sue for three times the deposit in Small Claims Court even though the tripled amount may be more than $2,000.25
Small claims blank complaint forms are available at the courthouse. For more about how to file a small claims form, see the official website for the state of Massachusetts, www.mass.gov (type "small claims court" in the search box).
There is one unique feature related to security deposit lawsuits that you need to know. If a tenant wins her security deposit case and a landlord wishes to appeal the court's decision, the landlord must "post a bond." A bond is money that the landlord must pay to appeal the case. In a security deposit case, a landlord must post a bond equal to the triple damages you are claiming, plus interest, court costs, and your attorney's fees.26 This law is designed as yet another incentive for the landlord to refund the deposit rather than prolong litigation by appealing.
Why Is There a Security Deposit Law
In 1975, the Massachusetts Public Interest Research Group (MassPIRG), a nonprofit advocacy organization, conducted a survey that proved that landlords were wrongfully holding on to deposits and forcing tenants to sue to get them back. If a tenant won, she got the deposit back and the cost of filing the lawsuit, but nothing more. The amount of the deposit was often not worth the expense and effort of trying to get it back. Dishonest landlords knew this and had no incentive to obey the law. The worst punishment they would face was to be ordered to pay the deposit that they should have paid in the first place.
In response to the MassPIRG study, the state legislature made the security deposit law stronger. Now, if the landlord refuses to refund your deposit or part of your deposit within the 30 days, you may sue her for three times the amount she owes you. If you win your lawsuit, the landlord is also required to reimburse your court costs and your attorney's fee, if you are represented by an attorney.
21 G.L. c. 186, §15B(4). Rendall v. Tarvezian, 1984 Mass. App. Div. 13 (N. Dist.), the only reported case on this subject, says that this language means what it says even if you and the landlord agree to an early termination of the lease. However, in that case, the landlord actually did not consent to early termination.
22 G.L. c. 186, §15B(4). Under G.L. c. 186, §15B(4)(i) and G.L. c. 186, §22(i), after a tenancy is terminated a landlord who is in compliance with the water submeter law may deduct final unpaid water charges from the tenant’s security deposit for a billing period for which the landlord has not yet been billed.
23 G.L. c. 186, §15B(6). This language does not prohibit the landlord from filing a separate lawsuit against the tenant to recover the damages. Jinwala v. Bizzaro, 24 Mass. App. Ct. 1, 7 (1987). A landlord cannot condition her return of part of the deposit on your agreement to release her from paying the balance. In Goes v. Feldman, 8 Mass. App. 84 (1979), a case decided under the Consumer Protection Act, a trustee who tried to retain $125 by using a restrictive endorsement on a check was held liable for three times the entire deposit, plus costs and attorney's fees, a total of $3,187.80.
24 G.L. c. 186, §15B(6)(e), (7). In those cases where the landlord's conduct entitles you to get the deposit back while you are still living on the premises, but the landlord refuses to return it after demand, the security deposit law is ambiguous regarding treble damages, but the Appeals Court has interpreted the statute to require such a remedy. Castenholz v. Caira, 21 Mass. App. Ct. 758, 764 (1986); Young v. Patukonis, 24 Mass. App. Ct. 907, 909 (1987) (rescript). Castenholz further holds that filing a lawsuit is itself considered a "demand," so that a landlord who is properly sued for the return of the deposit and does not immediately tender it thereby becomes liable for treble damages. Castenholz, 21 Mass. App. Ct. at 764. Also, if the landlord is subject to the Consumer Protection Act, G.L. c. 93A, recourse can be had to its treble damage provisions. 940 C.M.R. §3.17(4)(a),(b),(e), and (k). See McGrath v. Mishara, 386 Mass. 74, 82-87 (1982), regarding the interplay between security deposit statute and Chapter 93A claims. Chapter 93A requires a demand 30 days before filing suit, except where the tenant's claim is asserted by way of counterclaim against the landlord.
26 G.L. c. 218, §23. The constitutionality of this statute was upheld in Hampshire Village Assocs. v. District Court of Hampshire, 381 Mass. 148, 153 (1980), cert. denied sub. nom. Ruhlander v. District Court of Hampshire, 449 U.S. 1062 (1980).
Produced by Maureen McDonagh Created July 2008