I am an out of town landlord. I own one condo that was rented for one year by five students in Cambridge. When the tenants left at the end of August, the place was a mess. A couple of tenants cleaned their rooms while others left their rooms and kitchen a colossal mess. One of the rooms was painted a different color and several walls had huge marks, hooks, gashes, etc.
I was a very reasonable landlord. I had permitted some to sublet their room for the summer. I received noise complaints and trash complaints from residents throughout their tenancy. At the end of the lease, they had a party and the next morning vomit was in the front of the building-which they did cleanup on their own.
I paid them rent on their security deposit and deducted for cleaning. Most of the tenants were not thrilled but accepted the condition. I was a couple of days past the 30 day requirement-as I was evaluating their pictures and reconciling differing statements on the condition of the apartment.
The one tenant has said if I deduct from the security deposit he will seek triple damages for the full amount of the deposit-which he believes he is entitled.
If he does pursue me through the court system, can I counter sue for the damages to the walls (probably much more than the triple damages)?
Is he entitled to the triple the full amount or just triple the amount he is deducted if the judge rules that the fees were not warranted.
By the time this gets to court, I will have paid the repairs and have documentation on the condition on moveout.
I provided them a form to note any issues with the place on their move in but they never completed and returned the form.
Tenant suing over security deposit
The law in Massachusetts regarding the taking and use of security deposits by landlords is so full of traps for the innocent, and those of us who are not detail oriented, that many attorneys advise their landlord clients to simply NOT take a security deposit. If you do take a deposit, you must follow the letter of the law or risk facing a law suit from your tenant in which she seeks triple damages and attorney's fees. The most important law is Massachusetts General Laws Chapter 186, Section 15B. You must STUDY this Chapter for the details related to the general information listed below. When you take a security deposit you must:
1. Give a receipt to the tenant that includes the amount of the security deposit, the landlord's name, the address of the rental unit that deposit was taken for, and the name and location of the bank, with the account number, where the funds are held.
2. Deposit the money in a an escrow account that cannot be reached by your creditors. The bank can help you identify the appropriate form of account. Do not commingle deposit money with your own funds.
3. Give the tenant a statement of condition of the unit. You can find these forms on line and you should fill them out with as much detail as possible. This is the document you will use to prove to the court that the unit was in good condition, without the damages caused by the tenant, when the tenant moved in.
4. Pay to the tenant, annually, 5% interest on the deposit, or some lesser amount that the account actually pays.
5. Keep detailed copies and records of all of the above, and make them available to the tenant upon request.
6. Return the security deposit within 30 days after the tenant vacates. Do not deduct anything from the deposit other than unpaid rent that the tenant was not entitled to withhold, property taxes due under an escalator clause, and or the amount spent to repair damages done by the tenant. (You cannot deduct for normal wear and tear.) Again, read Chapter 186 carefully and follow the detailed instructions.
If you have failed to do ANY of the things discussed above, you are better off giving the tenant back his security deposit and filing a separate suit to collect damages. Massachusetts courts have held that landlords can avoid triple damages if they return the security deposit as soon as the tenant demands it. (See Castenholz v. Caira, 21 Mass. App. Ct. 758, 490 N.E. 2d 494 (1986).)
I did not do all of those
I did not do all of those things for various reasons.
If he sues for treble damages-is it an automatic thing on the entire amount or just the amount in dispute (in this case $70 for the cleaning)?
Can i counter sue for other damages when they sue me?
Can they take me to small claims court-i am an out of town landlord-do I have to fly to MA to respond to an action? can I send someone local?