In august, I started living in a house with no lease that was month to month. I signed no lease, nothing. The only papers I signed were the checks I gave every month. On the first month's rent, the landlord requested that I included a security deposit. I obliged and now -3 months later- she won't give it back. She says it was never a deposit and she's keeping it because I did not stay for a year, and didn't pay last months rent, even though I told her a month ahead of time that I was leaving with the last months check.
So to reiterate, she's not acknowledging it as a safety deposit at all, she's just saying it's money I some how owe her because I didn't stay as long as she wanted me too. Which is ridiculous because from day one she told me it was a month to month rental and that she wanted a security deposit... Now she's just lying her face off, saying anything that could keep my security deposit.
What can I legally say and or do to make her give me my money back?
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Editor's Response
If the facts are as you describe them (tenancy at will and you gave a proper 30 day's notice to quit), your landlord is in deep trouble. Massachusetts law requires your landlord to return the security deposit within 30 days after you move out. Typically, if you caused damage to the apartment, your landlord may use part of the security deposit to pay for repairs. However, if the landlord did not give you a 'statement of condition' at the beginning of the tenancy, I don't see how she can use the deposit for repairs. Even if she did you give you such a statement, she must give you a detailed list of what she spent the deposit on, including an estimated repair cost within 30 days after you move out. This statement must be signed under penalties of perjury.
If, after you show this answer to your landlord, she still refuses to return the deposit, you will have to sue her to get the deposit back. I know that does not sound like a lot of fun, but housing court is very friendly to pro se plaintiffs (people representing themselves) and there are 'housing specialists' to help you out or to mediate with your landlord. Start with a demand letter. Spell out your complaint and give the landlord thirty days to return you deposit. If the landlord does not return the deposit, go to the nearest Housing Court and file a complaint. Also, if you have to sue to get the deposit back, you may be entitled to three times the amount of the deposit, pursuant to Massachusetts General Laws Chapter 186, Section 15B(6)(e) and (7). Good luck.
Retaliation
Although Chapter 186, Section 15b does not allow for a counterclaim to recoup damages, can a landlord file a subsequent claim for damages to the property after being found in violation of this statute?
Editor's Response
Good question. For those who are not familiar with the statute in question, MA General Laws Chapter 186, Section 15(b) states in relevant part (with emphasis added by me):
(6) The lessor shall forfeit his right to retain any portion of the security deposit for any reason, or, in any action by a tenant to recover a security deposit, to counterclaim for any damage to the premises if he:
(a) fails to deposit such funds in an account as required by subsection (3);
(b) fails to furnish to the tenant within thirty days after the termination of the occupancy the itemized list of damages, if any, in compliance with the provisions of this section;
(c) uses in any lease signed by the tenant any provision which conflicts with any provision of this section and attempts to enforce such provision or attempts to obtain from the tenant or prospective tenant a waiver of any provision of this section;
(d) fails to transfer such security deposit to his successor in interest or to otherwise comply with the provisions of subsection (5) after he has succeeded to an interest in residential real property; or,
(e) fails to return to the tenant the security deposit or balance thereof to which the tenant is entitled after deducting therefrom any sums in accordance with the provisions of this section, together with any interest thereon, within thirty days after termination of the tenancy.
(7) If the lessor or his agent fails to comply with clauses (a), (d), or (e) of subsection 6, the tenant shall be awarded damages in an amount equal to three times the amount of such security deposit or balance thereof to which the tenant is entitled plus interest at the rate of five per cent from the date when such payment became due, together with court costs and reasonable attorney’s fees.
I believe the landlord can file a separate action to recover damages. Of course, you will need to have the proper documentation and proof (such as a signed Statement of Apartment Condition) to have any success in the action. Let us know if the housing court allows your action to proceed.
Cashing a "partial" return.
If a tenant cashes the check for a partial security deposit under protest, does he waive any rights to sue for the balance or make any implication that he accepts the refund as complete?