How Do I Get My Security Deposit Refund From My Landlord?
Before the year 2011, West Virginia law wasn’t very clear about the procedure for getting your rental security deposit back. The law changed in 2011, to give more detail about what steps you need to take, what deductions the landlord can subtract from the deposit, and what time limits apply.
We have written this article to tell you about your rights and to explain how to get your security deposit back from you landlord. If you have more questions, contact Legal Aid of West Virginia to see if we may be able to help you
Does The New Security Deposit Refund Law Apply To Every Tenancy?
No, not technically. It applies only to tenancies that started after June 10, 2011. If your security deposit was paid before June 10, 2011, this law does not “actually” apply.
What West Virginia law required before June 2011 was whatever was “reasonable” in the eyes of a judge. Now that this new law exists, it gives us a pretty good example of what should be “reasonable.” So, most of the time limits and rules of the new law are likely to be used by courts, even in cases involving tenancies that started before June 10, 2011.
What Is A “Security Deposit” That Is Covered By This Law?
A “security deposit” can be very broad. It covers “any refundable deposit of money” paid by a tenant to a landlord.
It definitely includes “security for damages” to the property. But it can also include any other refundable payment paid to “secure the performance” of some requirement in the lease.
However, there are a few things that specifically are NOT included in a Security Deposit:
- Rent; or
- Non-refundable application fee; or
- Non-refundable pet fee.
Does My Landlord Have To Return My Security Deposit To Me When I Move Out?
The answer depends on a lot of things.
If you broke the lease by moving out early, you may not get a refund.
If you left owing rent, you may not get a refund.
If you caused damage to the property, you may not get a refund.
If any of these things happen, you may owe money to the landlord. The landlord may be able to take some or all of your deposit to cover what you owe. If there is money left over after these things are paid, you may get some money back. If there is more owed than the amount of the Deposit, you may get sued for the extra amount.
The main thing the Security Deposit law does is establish a specific time limit for the landlord to do one of two things:
- Refund your deposit in full; or
- Give you a written statement identifying what is being taken out of your deposit, and why.
If the landlord does not meet the deadline to do one of these things, you may be able to sue for deposit refund PLUS monetary compensation for “annoyance and inconvenience.”
What If My Landlord Now Is Not The Same Landlord As When I Moved In. Do I Have To Deal With The Old Landlord To Get My Refund?
No. One of the best features of the 2011 Security Deposit law was to fix this problem. The landlord who owns the place at the time you move out has to refund the Security Deposit (or give a statement of costs being subtracted). Period.
It doesn’t matter whether the old landlord gave your security deposit to the new landlord. It doesn’t matter whether the old landlord said “I’ll take care of it.” The law says the owner at the time you move out is responsible for dealing with the Security Deposit refund law.
What Is The Time Deadline For Getting A Refund Or A Statement Of Costs?
There are two sets of rules. It depends on whether you receive some sort of federal rental assistance, or whether you rent without any federal rental assistance.
I Get Federal Rental Assistance (HUD, Section 8, Housing Authority, Low Income Tax Credit Housing, etc). What’s The Time Deadline For My Refund?
If you receive some sort of federal rental assistance, federal regulations give the landlord thirty (30) days. The landlord must EITHER refund the money OR explain why she is not refunding the money, within 30 days after you move out.
This 30 day limit applies even if your lease says something different.
I Do Not Get Federal Rental Assistance. What’s The Time Deadline For My Refund?
Tenancies that began after June 10, 2011. Under West Virginia law, where there is no federal housing assistance, there are several possible deadlines. The landlord has to meet whichever time limit is the shortest:
- 60 days from the end of the tenancy; or
- 45 days from the date a new tenant moved in; or
- Any shorter deadline that is given in the lease.
The landlord has to meet whichever of these limits is the shortest.
On the other hand, the time limit cannot be more than 60 days, no matter what the lease says. If your lease has a time limit longer than 60 days, the law says it doesn’t matter. Sixty days is the outside limit for any tenancy that began after June 10, 2011.
Tenancies that began before June 10, 2011. If your lease that began before June 10, 2011 gives a time limit for refund, that’s the rule. No matter how long or short it is. The 2011 Security Deposit statute does not change anything in leases that started before June 10, 2011.
If your lease that began before June 10, 2011 does not give ANY time limit for refund, then the law requires a “reasonable time.”
What is a "reasonable time"?
There's no precise definition, but a good place to start is fact that the Legislature chose to put "60 days" in the 2011 statute. That sounds reasonable. The landlord will have to explain to a judge why 60 days is not "reasonable. In part, it will depend on the circumstances of the case.
What Can My Landlord Take Out Of My Security Deposit?
- Rent and late fees.
- Damages to the rental unit and furnishings (except “reasonable wear and tear”). This can include the costs of a contractor to make repairs.
- Reasonable costs of cleaning up the place if you left it in a mess.
- Unpaid utilities that were “billed to and paid by the landlord” but which the tenant was supposed to pay.
- Reasonable costs for removal and/or storage of personal property the tenant left in the premises.
- And any “other damages or charges as provided in the rental agreement.”
What Is “Reasonable Wear and Tear”?
Your landlord cannot charge you for "normal wear and tear". Examples of "normal wear and tear" are a worn carpet, chipped paint, worn finish on a wood floor, and faded or dingy paint.
The landlord can charge for the cost of fixing damages which are beyond "normal wear and tear." Examples of these include:
- your kid's crayon art on the walls,
- broken windows,
- holes or nail holes in the walls,
- leaving trash or other items that have to be thrown away.
- If you made the apartment so dirty that it is unhealthy or unsafe, the landlord can deduct for the cost of making it livable again.
Are There Any Type Of Damages That Cannot Be Taken From My Security Deposit?
Damages caused by natural events that you had no control over are not your responsibility. Suppose your apartment is damaged by a storm, a fire or a criminal break-in and burglary. Tell your landlord right away about the damage and the case. He cannot charge you for the repairs if you or your guests did not cause the damage. It is also a good idea to make a police report.
But be careful to understand one thing. YOU ARE RESPONSIBLE FOR ANY DAMAGE CAUSED BY YOU OR ANY PERSON YOU ALLOWED TO COME TO THE HOME. It doesn’t matter if it was an accident. It doesn’t matter if you weren’t there, and the person you invited over caused some damage you would never have permitted if you were there. You are responsible for the acts of yourself, your family, and any person you allow to come to the property.
How Do I Avoid A Claim That I Left the Unit Messy?
This is one of the most frequent disputes between landlords and tenants about Security Deposits. You say you left the premises clean and neat. The landlord says you left the premises in a mess. So the landlord claims she had to use all your Security Deposit to pay people to clean it up.
Here are some of the most common ‘cleaning mistakes’ tenants make:
- Empty boxes that you didn’t use were left lying around.
- Bags of trash or unused packing materials were left lying around.
- Didn’t sweep and vacuum the place thoroughly.
- Didn’t clean EVERYTHING out of the refrigerator. Empty everything out, AND clean the shelves and trays of the refrigerator.
- Clean the stove and oven. (Yeah, no one wants to do this. But the landlord can charge you for it if you don’t do it yourself).
- Take EVERYTHING out of the bathrooms. Clean out the medicine cabinets. Clean the toilets and bathtubs. (Same deal. The landlord can charge you if you don’t do it yourself.)
- Take EVERYTHING out of all closets. Sweep and vacuum in the closets.
- Move-Out Inspections – Good! Some landlords will require that you meet with them to do a move-out inspection. Some landlords don’t require it, but are willing to meet with you to do one if you ask. This is a good thing. Do a move-out inspection if the landlord is willing.
If the landlord tells you the place is clean and acceptable, then have her write it down so you can keep it for your records. If the landlord refuses to write out a sentence that you left the place in good condition, then realize that you are going to have to protect yourself as we discuss next.
How Do I Prove I Left The Place In Clean And Good Condition?
You will need evidence to prove that you left the place in good condition. The best and easiest option is to take pictures. Show every single room and closet in the unit. Show the floors and walls and ceilings in every room. Show some of the people who helped you move, because they may have to be witnesses later.
Suppose the landlord does a move-out inspection with you. He points out items that he thinks are not acceptable. You disagree with him. Be sure to take plenty of pictures to show exactly what it is that you are arguing about. Somewhere down the line, a magistrate or judge may have to look at the pictures to decide which one of you is right.
You don’t need to have the pictures printed right away. You can wait until you know whether you have a dispute, as long as you don’t lose the images.
If you do plan to use pictures in court, DON’T EXPECT TO JUST SHOW THE PICTURES ON YOUR PHONE! They are too small and too hard to see. They won’t have much impact at all with the judge.
Instead, go to a copy shop. Use a color copier and print full-page-size images of the most effective pictures. (Yes, it will cost around a dollar a page. Isn’t it worth it to get your deposit back?) Enlarged pictures have much more impact and power with the court than small prints.
You can also take video to show the same things. But realize that video is more difficult to use in court. You will have to make special arrangements with the court ahead of time, to make sure that the court will have a video player and TV available. And the magistrate may not be interested in watching the whole 20 minute video. Good clear photographs are much easier to use.
What Kind Of Notice Do I Have To Give If I Am Moving Before The End Of The Lease?
If you have a lease: Read it to see how much notification is required. There are lots of possibilities:
- The lease may not have any provision allowing you to leave before the end of the lease. In that case the landlord may claim you breach the lease if you move out early.
- The lease may require you to pay a fixed amount of money AND give a required advance notice in order to leave before the end of the lease.
- The lease may allow you to move out early only in certain circumstances, such as change of job.
- Or the lease might allow you to move whenever you give the correct notification.
If you do not have a written lease: For most people, if they don’t have a written lease they usually have a month-to-month verbal rental agreement. In this situation you must give your landlord "one full rent period" of advance written notice.
This means you should notify the landlord during the current rent month that you will be leaving at the end of the next rent month. The notice period should end on a rent day. You and your landlord can agree to a shorter notice period, if you agree in writing.
For another Legal Aid information page with much more detail about notice required to end a month-to-month tenancy, click here.
If you do not give the correct advance notice, your landlord may try to charge you for time after you move out. If you have a lease, she may try to charge you rent for the rest of the lease term. Again, this will depend on what the lease says.
Can I Just Leave the Key in the Apartment When I Leave?
No. You should deliver the key to the landlord. You can take it to the landlord personally. Another person can take it to the landlord for you. Or you can send it by certified mail return receipt requested.
All of this guarantees two things. One, that you have in fact moved out. Two, that the landlord is in fact aware that you have moved out. Otherwise, the landlord might claim she didn’t know for a long time that you had actually moved away.
What Can I Do To Make It Easy For The Landlord To Refund My Security Deposit?
Give the landlord a clear written notice. Include the following information:
- Your name
- The address of the rental unit you are using
- The date when you will be vacating the rental unit
- The address where you want your refund to be sent
- Other contact information to reach you (or someone who can contact you) if there are problems
- A reminder of the amount of your Security Deposit
Here is a checklist for moving out that might help you avoid problems with your landlord and make it easier for you to get your deposit back.
If I Move Out Early, Does The Landlord Have To Try To Re-Rent The Apartment After I Leave?
Yes. Your landlord must make “reasonable efforts” to try to re-rent your apartment as soon as she knows you have moved out.
Your landlord can charge you reasonable expenses for re-renting the apartment if you moved without giving the proper advance notice.
If the landlord does re-rent your apartment right away, she can only charge you for the time you were actually there, plus the additional time it took her to find a new tenant.
For example, suppose your rent is $500 a month and you moved out on the 10th day of the month. Your landlord re-rents the apartment on the 15th of the month. You owe half a month's rent -- for the first ten days you were still in the unit, plus the 5 days it took her to rent the place again.
If The Landlord Is Taking Money Out Of My Deposit, What Has To Be In The Letter I Get?
The landlord has to provide a “written itemization” of any damages or charges. That means the landlord has to identify each and every item of damage, and show the amount of deduction for each item.
If the damages are more than the amount of the security deposit, the landlord has to put that in writing by the deadline.
If the damages require a contractor to come make repairs, the landlord has to put that in writing by the deadline. He then has another 15 days to give an itemization of the damages and the costs of repair.
What If My Landlord Sends Me A Letter, But Takes Too Much Out of My Security Deposit?
Suppose your landlord sends you a letter in the required time, but he tells you that he is keeping some or all of your security deposit. You think the amount he’s deducting is too high.
Contact the landlord to try to discuss the problem and reach a solution.
If that doesn’t work, you can sue the landlord in Magistrate court. You can sue for the amount that you think is a fair refund. Be aware that the landlord will come to court to show exactly what was spent for the itemized damages. You will need evidence to show that the costs paid by the landlord were not “reasonable.”
What Do I Do If My Landlord Doesn't Send A Refund or a Letter In The Proper Time Limit?
Start by contacting the landlord to ask for the refund. It is best to do this in a written letter sent by “certified mail, return receipt requested.” This way you can prove to a court later that you took reasonable steps to solve the problem before going to court.
Your letter to the landlord asking about the refund should include the following information:
- Your name;
- The address of the property that you rented from the landlord;
- The date that you gave him notice you would be leaving;
- The date that you actually vacated the rental unit; and
- An address where the landlord can send you deposit refund.
What If My Landlord Still Won't Return My Deposit?
If your landlord doesn't refund the deposit after a reasonable time you can:
- Sue your landlord yourself in Magistrate Court; or
- Talk to an attorney about taking your case.
How Do I Sue In Magistrate Court?
Your local Magistrate Court Clerk's Office has all of the forms you will need to start a Magistrate claim against your landlord. Magistrate Court is designed for small cases by ordinary people, so you don’t absolutely have to have a lawyer. Go here to learn more about filing a case in Magistrate Court.
There is a filing fee to start any lawsuit. If you cannot pay the filing fee, tell the clerk you want to file a Fee Waiver. The clerk will give you forms to fill out or you can find the form here. The form asks for financial information, to show that you cannot afford the filing fee. Go here to learn more about asking for a Fee Waiver.
Ask the court to award judgment to you for your security deposit. You may also ask the Court to award you compensation for any fees or costs you had to pay because the landlord did not refund your deposit properly. Also ask for your court costs.
If I Sue My Landlord, Can My Landlord Sue Me?
Yes. Keep this in mind before you sue. If you owe your landlord money, he will probably bring a "counterclaim" against you. He'll be adding everything he can think of to offset your claim for return of the deposit. So, if you owe the landlord more than he owes you, suing in court is a bad idea.
On the other hand, if the landlord sues you, you can also "counterclaim" for return of your deposit and for any other money he owes you.
Summary of Steps
- Make sure you give proper advance notification before you move out.
- Clean the premises thoroughly.
- Do a move-out inspection. If the landlord won’t participate, take pictures and/or video of the clean conditions. Have witnesses who observe the clean conditions.
- Deliver the key to the landlord. Make a written request for the deposit, and give the landlord an address where you want the refund sent.
- Give the landlord a “reasonable time” to respond. Unless there are unusual problems, 30 days is usually adequate.
- If the landlord does not respond to you in a reasonable time, then consider your options. Go to court yourself. Hire a lawyer to help you.