Can we keep the security deposit?

Question

Our tenants just moved out. The first floor is about 580 square feet, and the flooring is bamboo. Bamboo is a fairly soft flooring as far as wood floorings go, so to help prolong them, we do have a no pet policy. Our tenants got around that by having a large pitbull as an ESA. Upon moving out, the floors are covered with divots and indentations all over the floors. It looks like the finish is just scratched, but each scratch is actually a depression in the flooring. The only fix would be to have the floors sanded down and refinished, or put down new flooring.

Does this go beyond normal wear and tear? Through 4 others tenants the floors have been fine, and you can clearly see where the couch was sitting in the living room because that is one of the only spots where there aren't any scratches.

Any advice is appreciated! The property is in Ohio if that matters.

Does this go beyond normal wear and tear?  Through 4 others tenants the floors have been fine, and you can clearly see where the couch was sitting in the living room because that is one of the only spots where there aren't any scratches.

Any advice is appreciated!  The property is in Ohio if that matters.

Joe Splitrock · Answer

@Grant Farrington first of all, you don't just "keep the security deposit". You have to itemize cleaning and damages, then DEDUCT the amount from their deposit. Then you have to send a letter that itemizes deductions and stats how much money they get back or how much money they owe. It should never match the security deposit amount. My guess is refinishing the floor will be more than the security deposit. Get a quote for the expense to substantiate your deduction. Say the deposit was $1000 and the refinishing is $1432.25, then you request them to pay the $432.25 additional. Some states require you to provide receipts/quotes for deductions, so have that documentation ready or just include it with the bill. Again, you are not keeping the deposit, you are deducting damages.

As far as the ESA, the tenant has a right to an ESA with proper documentation, but they do not have a right to damage. You can deduct any ESA damage from their deposit and bill them for the remainder. Based on what you are saying, these are legitimate deductions and I would charge the tenant.

As @Greg Weik mentioned, hopefully you have good documentation in case the tenant disputes. I take over 100 photographs and a video of every property before move in. I also have tenants sign a move in checklist attesting to condition on move in. You don't need this to take the deduction, but you may need it to defend yourself if the tenant challenges you in court. In that situation you could also get a signed statement from the previous tenant or other witnesses who saw the condition of the floor prior to move in.

Theresa Harris · Answer

This is more than normal wear and tear. Regardless if the pet was and ESA or not, the floor is damaged.  Get it replaced and charge them for the lifespan of the floor.  So if the floor would last for 10 years and it was 3 years old, charge them 70% of the price to get it replaced with a comparable flooring.

Greg Weik · Answer

Hi Grant, how is your move-in/move-out documentation?  It needs to be EXCELLENT for you to have a chance at a claim like this.  Crystal clear move-in photos of the areas in question and crystal clear move out photos of the same areas.  If it's not, cut your losses and chalk this up as the cost of education.

Our policy:  If an owner allows pets, then light scratches from animal claws are ordinary wear and tear.  If they allow pets on a bamboo floor, then the divots you speak of would fall into the OWT category as well.

What you're asking, however, is a legal question that no one can answer with certainty.  Likely not even an attorney can definitively answer this unless they can find case law that covers this exact scenario.  And even then, you would need the unassailable move-in/move-out documentation I alluded to above.

If you've got great documentation, I would move forward with a claim.  I don't believe solid floors - even bamboo - can be reasonably assumed to have a depreciating lifespan, such as carpet and paint would.  I think there's a strong case to be made that you should be made whole, with new bamboo replacement floors.  Depending on that cost, I would consider consulting an attorney.

Like many things in PM, it's a question of degree.  How much time and energy are you willing to spend fighting for this?

Jason Andler · Answer

@Grant Farrington

I've never had this issue with an ESA, but I allow pets. This sounds like something that is more than normal wear and tear to me. I would also take into account the length of thier stay. If they have been there for 6 months, normal wear and tear looks a lot different than if they were there for 6 years.

If there is damage beyond normal wear and tear, I don't think it matters what caused the damage. The security deposit is intended to cover costs for repairs that are needed beyond normal wear and tear. But I tend to oversimplify things, so take it for what it's worth...

Long Dang · Answer

@Grant Farrington if you do decide to deduct, definitely take pictures of all the damages, make sure the documentation of the divots and indentations are clear.

Then get an itemized receipt of the cost of fixing the damages. This is the amount you can deduct from the tenant.

Most states are tenant favored, control what you can control. Good luck getting that $$ back.

Can we keep the security deposit?

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