Witholding Security Deposit due to Cigarette Smoking Damage?

[Lorraine Pennington]

Hi Everyone! 

I've got a situation that I believe I'm in the Right, however just got off the phone with the tenant and his anger and frustration has got me thinking twice. This is the deal. 

I bought the property 2 years ago (a 4 plex in NM) and inherited this tenant. He has lived on the premises for 7 years and left in June. He paid $675/month with a $500 security deposit. He smoked indoors and there was so much nicotine damage that I had to charge him for it. There was nicotine on the walls and ceilings. The appliances and light switches were all yellowed from the amount of nicotine. Everything in the unit (floor to ceiling) was wiped down with vinegar/water and then I shocked the entire unit using an Ozone Generator. 

His argument is that he specifically looked for a lease that didn't stipulate NO SMOKING so that he could smoke inside his home. Since the old lease with the old landlord was still in place, he says he is not responsible for that damage ... and that in fact, it is not damage ... that it is just the cost to a landlord to clean it up. My argument is that no, just because a lease doesn't specify every imaginable damage doesn't mean that it makes it okay. Smoke damage is still damage. I charged him not only for the wipe down of the entire unit ... but also for the KILZ odor primer. We never charge our tenants for painting to turn a unit ... but in this case I had to use a heavy duty sealant primer to ensure the stains and odors don't come right back up. 

His deduction detail actually shows that he owes me money ... but I was willing to not to collect. He is now asking for $250 of the $500 deposit. Part of me wants to offer him $100 to appease him and move on and avoid any potential legal costs. What does your experience tell you to do?? 

Here is the detail of his security deposit: 

Removal/Clean up of was, $75

Wall Repair, $150

Reattach bathroom bar, $25

Reattach Bedroom Door, $25

Reattach Closet bar, $25

Carpet Cleaning, $60

Ozone Generator, $49.99

Treat home with 40 hours of ozone generator, n/c

Clean walls of nicotine stains (16 hrs @ 12/hr), $192.

Clean kitchen flooring/appliances (8 hrs @ 12/hr) 

Kilz Odor Seal Primer 2-5g buckets, $304.

Application of Primer (48 work hours), n/c

SUB TOTAL 1001.99

Less Deposit (500.00) 

Total Due $501.99. 

I told him we decided to not pursue the collection of the $501.99. 

Appreciate your feedback, 

Lorraine