This is a long article. If you care about your money,
you will read it. Only then will you know which details apply to you.
One of the biggest mistakes renters make is assuming
that their landlords/managers will behave honorably after termination
of tenancy. Non-return, or only partial return, of the security deposit
are common, even when dwelling units are left in immaculate condition.
Additional claims are also common.
Tenants should demand the return of their security deposits
even when none was originally paid. This is because by doing so a
tenant puts a 14 day legal time constraint on the owner/agent being
able to make any claim. The last thing tenants need is to come home
one day and find demands for thousands of dollars from landlords of
years ago, or that their credits records are degraded and they are
consequently unable to purchase homes or cars or whatever.
Many landlords claim that tenants either owe rent, late
fees, repair bills or other charges from way into the past. This is
despite any evidence tenants may have to the contrary, including receipts
or cancelled checks, or that there had been no previous demand for
these monies.
More often, the manager/landlord has a gripe, either
real or concocted, against the tenant. They will fabricate all sorts
of physical damages to the unit. Ridiculous claims are common -- ranging
from overgrown weeds, to a broken lock, to dirty carpets -- all of
which were conditions existing at the commencement of tenancy. Frequently
managers, after inspections of ~effectlv cleaned apartments, refuse
to return the security because of new claims never before mentioned.
What can you do to protect yourself? First of all, stop
being naive and assuming that owners and agents will treat you honorably
once they no l9nger have to deal with you every month. The scent of
dollars can quickly alter the observed character of property managers.
Second, review ARS §§33-1321 (Security Deposits) and 33-1313 (Notice)
Hopefully at the commencement of your tenancy the owner
provided you with a form for specifying damages and you conducted
a move-in inspection, noting problems. Take photos, have a friendly
witness present When concluding your tenancy, however, it is imperative
you request that the owner/agent inform you of when the move-out inspection
will occur, so you can be present. Don't verbally dance around the
request, or request anything other than what is underlined above --
it's language from the statute. The request should be sent by certified
mail, return receipt requested, several weeks before you actually
plan to leave. Explain that you intend to return the keys at the joint
move-out inspection, and that if the owner/agent fails to arrange
such an inspection within a set period of time you will assume he/she
accepts the dwelling in as good or better condition as when you originally
took possession, ordinary wear and tear excepted. This puts the burden
on the owner/agent to cooperate.
Just by virtue of being a tenant. Deal with it. Do more
than is reasonable. Deny the owner any excuses to charge you.
Okay, let's say the inspection proceeded smoothly. The
law says that in order to recover your security deposit, in part or
in full, you must terminate the tenancy, deliver possession of the
unit, and demand return of the security. While not stated as an absolute
requirement in this section, clearly it is incumbent upon you to also
provide notification of your new address. And while the statute is
silent on the following, in practice an oral demand for security return
never happened, despite your having gobs of witnesses attesting to
the demand. Basically, you must integrate a demand into a signed and
dated letter that covers the issues of this paragraph, keeping a copy
for your records. Failure to fulfill any and all of these stipulations
means you may not get the security back, and you may face additional
claims against you.
One caveat. If the owner/agent has problems with the
premises, you have two options. Should the claims be arguably reasonable,
you ought to correct the problems. That's a bunch less costly than
letting the other side do the repairs and then billing you at an inflated
rate. When you are done, ask for another inspection to certify the
owner/agent's satisfaction. If he/she refuses or delays, then proceed
on your own.
Alternatively, if the owner/agent is just feeding you
a line and is clearly way out of line, stand your ground and present
your points. Common arguments are: the damage was pre-existing at
move-in; the damage is normal wear and tear; the owner/agent caused
the damage; and, of course, you dispute the assertion that there is
any damage.
The security demand letter should be handed to the owner/agent
at the conclusion of the final inspection, along with the keys. Of
course, keep a photocopy. As with anything delivered in person, you
must be sure it is before a friendly witness and then both of you
should sign a contemporaneous note making specific record of the transaction.
Should management fail to respond to your request to
arrange a joint move-out inspection, do your own. Take photos, notes,
have witnesses. all the usual steps. Then send the owner/agent your
demand for return of the security (mentioning all the key points),
and also the keys with a cover letter explaining that you are forced
to send them by mail because the owner/agent ignored your request
to set the move-out inspection at which you had intended to deliver
possession by handing over the keys. Use the post office as your witness
by giving notice and return of the key(s) via certified or registered
mail, return receipt requested.
Once management has received your demand, it has 14
business days (add another five to accommodate the post office delivery)
to do the following: return the amount of security due; and to make
any additional claims, which must be itemized. If any of your security
has been withheld, included with whatever security is actually returned
must be a statement itemizing the "damages which the landlord has
suffered by reason of the tenant's noncompliance with § 33-1341."
If management fails to properly return what is due to you within the
required time frame and with the proper itemization, then you have
the right to sue for its return plus damages "equal to twice the amount
wrongfully withheld." At this poi~t yol? will be thankful that you
took photographs, had a witness, followed the inspection process,
and gave proper notice at all times.
Odds are, the owner/agent will within the 14 days send
you a letter or form itemizing deductions. It's a good idea to dispute
each and every improper claim, explaining why you are not liable and
that the charges are unwarranted. Give the owner/agent a deadline
to respond by sending you what is wrongfully being withheld, and tell
him/her that if the specific amount isn't returned to you within a
given number of days you'll commence a legal action to recover it,
that you'll seek damages, and if you that the prevail owner/agent
will also be liable for costs and attorney's fees.
If the owner/agent never responded within the 14 day
time frame, you are in luck. Send a simple letter informing the owner/agent
that he/she had failed to timely respond, is therefore liable for
damages in addition to the amount wrongfully withheld; and that if
the specific amount is not returned to you within a given number of
days you will commence a legal action to recover it, that you will
seek damages, and that the owner/agent will also be liable for costs
and attorney's fees if you prevail.
The fee for filing a complaint in small claims court
is minimal. Service of process upon the defendant is acceptable by
certified mail, should management accept it while service by a process
server is more reliable but may cost -bout $35.00. Be careful to read
the fine print in your lease stipulating upon whom process must be
served, and be sure to research who, if anyone, is the owner's statutory
agent. This sometimes is very complex, and may involve using the secretary
of state.
The problem with small claims, and why it is not recommended,
is that judgements are not subject to appeal. Because most justices
of the peace are extremely biased against tenants, the high risk of
getting stuck with an adverse small claims ruling is just not worth
it. Better to have the case heard in the civil division of justice
court (only a little more costly) so you can appeal, if necessary.
Besides, even if you chose to file in small claims, the opposing side
has the option to request transfer to the civil division where attorneys
are permitted. So just plan on using your own attorney, despite the
cost; with an attorney the odds of success are improved.
Although it will be one lawsuit with a single case number,
you should name all the parties as defendants: on-site manager, management
company, and especially owner(s) . If you have never previously known
who is the owner, now is the time you must find out.
However, if you cover your bases properly you are more
likely to find that management will be careful to refund what is due
to you; litigation will be unnecessary.
It's highly recommended you utilize Arizona Tenants
Association's help with any correspondence.
