1. What Can My Security Deposit Be Used For
a. While you are in the apartment
While you are living in the apartment, you and your 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 can only use a security deposit in this way if you and she both agree to it.31 If you both agree, put the agreement in writing. Both of you should sign it. Keep a copy.
b. When you move out
When you move out, your landlord can use your security deposit to pay for:
- Repairs for damage that are not "reasonable wear and tear."
- Unpaid rent, unless you legally withheld rent for bad conditions. See Chapter 8: Getting Repairs Made.
- Unpaid real estate tax increase, if your contract requires it.32 See Chapter 5: Rent.
Your landlord cannot use your deposit for:
- Damage that was already there when you moved in.
- Reasonable wear and tear, like routine painting and cleaning, new locks and keys, and small carpentry repairs.33
- Repair costs that are not documented.
- Phony claims of damage.
- Repair costs that are unreasonably high.
c. Using security deposit to for repairs after you move out
If your landlord wants to use your security deposit for repairs, she has 30 days after you move out to give you a complete list of the damaged items and the cost to repair them.
The list must say that she "swears under penalties of perjury" the list is true and she must sign it.
She must also attach written receipts and estimates for the repairs. 34
2. When Can I Get My Security Deposit Back
a. While you are in the apartment
If your landlord fails to follow the security deposit law while you are renting, you have a right to ask her to return the security deposit right away. See Following the Security Deposit Law.
You can ask for the entire security deposit back if the landlord:
- Does not give you a complete receipt within 30 days of getting your deposit, see Written Receipts.
- Does not let you inspect her records of deposits and repairs, see Records of Deposits and Repairs.35
- Asks you orally, or in writing to give up your security deposit rights.
You have a right to ask for 3 times the amount of your security deposit if the landlord:
- Does not put your security deposit money in a separate account or
- Does not transfer it to a new owner.36
To ask for your deposit back, use the sample Security Deposit Demand Letter (Form 5).
b. When your tenancy ends
If there is damage, your landlord must give you a detailed list of damages within 30 days after your “tenancy ends.”
If there is no damage or unpaid rent, your landlord must return the security deposit plus interest owed within 30 days after your tenancy ends.37
Your tenancy ends:
- Do not have lease: If you do not have a written lease, your tenancy ends the day you move out. And your landlord must return your security deposit within 30 days.
- Have lease: If you have a written lease, your tenancy ends when your lease ends. If you move before the lease ends, the landlord does not have to return the security deposit until 30 days after the last day of the lease.38 If you move after your lease ends, the landlord must return the security deposit 30 days after you move out.
c. After you move out
After you move out, you have a right to ask your landlord to return your security deposit if:
- Your landlord does not give you an itemized list of damages within 30 days after you move out, or
- Your landlord does not return your deposit or any balance owed you, with interest, within 30 days of when your tenancy ends.39
3. How Do I Protect My Security Deposit Before
I Move Out
- Give your landlord an address where she can send the security deposit and any interest.
- Take photos of all of the rooms in case you need to prove the condition of the apartment when you moved out.
- Ask the landlord to inspect the apartment with you and to point out any damage she plans to subtract from your security deposit.
- Have your Statement of Condition with you in case you need to show the landlord that the problem existed when you moved in. See Statement of Condition (Form 3).
- If there is any damage that goes beyond “wear and tear,” make a list that you and your landlord can sign. You may be able to reach an agreement with the landlord before you move out.
- If your landlord refuses to inspect the apartment, make your own list of any damage or improvements. Sign and date it, then mail it to her after you move out. Remember to put in an address where she can send the security deposit.
4. How Do I Get My Security Deposit Back?
If your landlord does not return your security deposit when she should or she fails to follow the law, you can send her a demand letter.
If you send a demand letter and she still does not return your security deposit, you can take her to court.
a. Demand Letter
You can use a demand letter whenever you have the right to an immediate return of your deposit, even if it is not at the end of your tenancy.40
Send the letter by certified mail, return receipt requested. Keep a copy for your records.
If your landlord does not respond to your demand letter for the return of your security deposit, you can take her to court. You can ask the court for up to 3 times the amount of the deposit, plus interest. If your security deposit was $1,000, she may have to pay you $3,000, plus interest, plus your court fees. If you hire a lawyer, the landlord will also have to pay your lawyer’s fees.41 See Triple Damages.
For more information about demand letters go to www.mass.gov/ago/consumer-resources/consumer-assistance/93a-demand-letter.html.
b. Taking Your
Landlord to Court
You can take your landlord to court if she:
- Fails to respond to your demand letter;
- Fails to return your security deposit, with interest, within 30 days of the day you move out, or 30 days of the last day of your lease;
- Fails to give you a complete list of damages within 30 days after you move out;
- Failed to give you a complete receipt within 30 days of your giving the landlord a security deposit when you first moved in.
- Failed to put the money in a separate bank account that is protected from creditors;
- Failed to transfer a security deposit to a new owner; or
- Asked you to give up your rights orally or in writing.
You can sue for up to $7,000 in Small Claims court. If your security deposit was less than $7,000, you can sue for 3 times the deposit, even though 3 times that amount may be more than $7,000.
You can also sue her for any interest she did not pay you during your tenancy and for the amount of money you have to pay an attorney to represent you.42
If you sue your landlord for your security deposit and she did not give you a complete list of damages within 30 days of your tenancy ending, she cannot claim you caused damage to the apartment. If she wants to sue you for damage to the apartment, she must start a separate case.43
The landlord is not allowed to keep any part of your deposit unless she sends you the list of damage and repairs within 30 days of the day you move out.44
c. Triple Damages
If you go to court, the court must award 3 times your security deposit if the court finds that your landlord has failed to:
- Properly deposit a security deposit in a bank account separate from the landlord's funds and protected from creditors;45
- Transfer a security deposit to a new owner; or
- Return the security deposit or balance that you have a right to within 30 days of the end of your tenancy.46
d. Where to file
Most security deposit cases can be filed as a Small Claims case. Housing Courts, District Courts, and the Boston Municipal Court all have Small Claims sessions.
The Massachusetts Court website has lots of information about Small Claims and forms in multiple languages that you can use at: www.mass.gov/courts/selfhelp/small-claims/.
Also, the Massachusetts Trial Court Law Libraries website has detailed information about Small Claims laws in Massachusetts at: www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/smallclaims.html
If you win a Small Claims case, the landlord can appeal. Most landlords do not appeal. To appeal, the landlord has to give the court a “bond” to start the appeal. The amount of the bond is 3 times the security deposit.47 This law is to keep the landlord from using the court to tie up your security deposit in a lengthy lawsuit.
Why Is There a Security Deposit Law
In 1975, Massachusetts Public Interest Research Group (MassPIRG) proved that landlords were keeping tenants’ deposits illegally, forcing tenants to sue to get them back. If a tenant sued and won, she could recover the amount of the deposit and court fees, but nothing more. For most tenants, it was not worth the cost and effort of suing. Dishonest landlords knew this and had no reason to obey the law. The worst punishment they could face was to be ordered to pay the deposit they should have paid in the first place.
Because of this research, the state legislature made the security deposit law stronger. Now, landlords who refuse to refund tenants the deposit money within 30 days, if there is no damage, may have to pay 3 times the amount. MassPIRG is a non-profit agency.
32 . G.L. c. 186, §15B(4)(ii). Also, under G.L. c. 186, §15B(4)(i) and G.L. c. 186, §22(i) G.L. c. 186, §22(i), after a tenancy is terminated, a landlord who is in compliance with the water submeter law may deduct the final unpaid water charges from the tenant’s security deposit for a billing period for which the landlord has not yet been billed.
36 . G.L. c. 186, §15B(7). The tenant is entitled to this treble damage remedy whenever the landlord fails to comply strictly with the terms of the statute. The penalty is not discretionary. The tenant does not need to prove that the landlord acted in bad faith or that the tenant lost money because of the landlord's actions. Mellor v. Berman, 390 Mass. 275, 283 (1983).
38 . 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.
40 . 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.
43 . G.L. c. 186, §15B(6)(b). 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.
45 . G.L. c. 186, §15B(1)(e), (3)(a). The tenant is entitled to an award by the court of treble damage remedy whenever the landlord fails to comply strictly with the terms of the statute. The penalty is not discretionary. The tenant does not need to prove that the landlord acted in bad faith or that the tenant lost money because of the landlord's actions. Mellor v. Berman, 390 Mass. 275, 279 and 283 (1983).
47 . 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).