Security Deposit when Evicted

[Chris Heeren]

I recently purchased a Triplex that came with tenants, one of which never paid his rent. I finally got him evicted just over a month ago after going 3 months without rent. I took the initial security deposit and kept it to cover the first months rent that he owed. I took a hit on the remaining 2 months. To my surprise, I just received a message from him today requesting his security deposit back. I'd like to know what I can and cannot legally do in this scenario before I return his phone call. The unit wasn't cleaned and was in pretty bad shape after he left however, I do not know what the condition of the place was when he moved in. Do I have the right to simply take the security deposit for payment on one of the months he owe's me for? He currently does not have a job and doesn't have a way for me to garnish his wages to recoop the missing rent - I also am fine with just walking away from all this and moving on. Just trying to figure out what ground he would possibly have for requesting his money back in the first place? Any advice would be greatly appreciated!

[Brie Schmidt]

@Chris Heeren

The landlord has a right to withhold a security deposit for any of several reasons, such as if the tenant:

• damaged the premises beyond ordinary wear and tear;
• caused waste or neglect of the premises (such as leaving hot water running in the bathtub for days);
• didn't pay rent;
• didn't pay for utility services, whether the landlord provided these or the tenant paid the utility companies directly; or
• didn't pay mobile home parking fees that the local government assessed against the tenant.

The landlord must give reasons in writing for refusing to return all or part of the security deposit. State law requires the landlord to provide this information within 21 days of the tenant vacating. The tenant must give the landlord his or her new address.

Say that 21 days go by since the tenant vacated the premises, and the landlord still hasn't returned the security deposit or provided written reasons for withholding all or part of it. Then the tenant can take the landlord to small claims court. What's more, the tenant can ask the court to double the security deposit amount, as a penalty for not meeting the 21-day time limit.

On the other hand, the landlord may provide, within the 21-day time frame, written reasons for withholding all or part of the security deposit. But the tenant may disagree with the landlord’s decision. Here, too, the tenant can take the landlord to small claims court to try to recover the deposit. The court may decide the landlord owes the tenant money. But, unlike in the above example, unless the court determines that the landlord falsified or misrepresented its damages, the court won't require the landlord to pay double the security deposit (or the portion improperly withheld). If the court decides that the landlord improperly withheld all or a portion of the security deposit, the court must award a tenant who has retained an attorney the reasonable cost of the attorney’s services.

http://www.wisbar.org/forPublic/INeedInformation/Pages/Landlord-Tenant.aspx