[pammaes]

My son and his wife had to break their lease after 5 1/2 years to seek cheaper housing after losing his job and trying to raise 2 small children. They forfieted their $1,500 security deposit, of course. Now 6 months later the landlord has forwarded a letter asking for $1,322 (less than the amount of the security deposit with $178 left over) for cleaning, painting, fixing faulty basebard heat registers, and an out of line patio door that would not close properly. He was made aware a long time ago about the patio door and looked at it and said it was due to the building "settling" and could not do anything about it. One Winter he covered it with plastic to keep out the cold air but never did anything since. He was also made aware of the heat registers and collapsing shelves in the kitchen cabinets. Now they get this letter itemizing repairs including the door and heat registers. It appears he is not using the security deposit for anything, but billing them for the repairs in addition, 6 months after they moved. He also states that if money is not received by May 1, 2009 he will take them to court and sue for 7 months back rent in addition to repairs. It appears he is counting on them being naïve enough to pay him the $1,322 so he will forgive the "back rent". This is almost 6 months after they moved and feel like he is trying to intimidate them. Can he do this? He says he understands why they had to move (right!! ) and feels bad about the situation BUT must protect his rights etc. My son is still out of full time employment and only works abot 15-20 hrs per week at barely over minimum wage. His wife works about 30 hrs per week and will have to stop soon due to being pregnant.
Incidentyally, the apartment is still empty as he is gutting the whole place and put in a whole new kitchen and all new thermopane windows- things he should have done years ago. Is he on the level??

[Fr_Chuck]

He can of course sue, so it will be up to him to prove these were damaged and beyond normal wear and tear.

And it will be up to them to prove what condition they left the apartment, though a inspection at the time they left, noting any problems when they left, normally they would have taken photos of it when they left for their own protection.

Now of course they do owe for unpaid rents and he can always sue for them, since they broke the lease and unles he rented the unit to someone else, it will be owed. If the unit was rented, they only owe the rent till it became moved in

[LisaB4657]

Where is the property located? Most states have laws specifying that the landlord must return either the deposit, or a written, detailed accounting of how the deposit was used, within a certain time after the tenant turns over possession of the property to the landlord. In most of those states the time is 30-45 days.

If there is such a law in the state where your son lived, and if the landlord didn't provide anything in writing to your son beyond that time, then your son can sue the landlord and the landlord may not be entitled to retain any of the deposit.

Tell us which state and we can check the law for you.

[ScottGem]

In most states a Landlord can decide to apply the security towards unpaid rental. If there are damages above and beyond the rental owed, then he could sue for them if he acted in a timely fashion.

I strongly suspect that not only did he NOT act in a timely fashion, but he may have forfeited the right to use the deposit at all. As Lisa noted this will depend on the laws of the state.

There is a kicker to this, that the landlord might be able to sue them for rent to the end of the lease.

So you need to readup on the law in your state.

[pammaes]

Thanks guys! I forgot to mention it's in the state of Illinois. Oak Lawn to be exact, a Chicago suburb. They moved on September 29, 2008 and the lease would be up April 30,2009They received this letter last week on March 20, 2009 after he dropped it off at my other son's place of employment. After the move,he refused to return security deposit of $1,500. He knew they were having serious financial problems (and still are). He claims his repairs (he itemized in the letter-no receipts enclosed) a total of $1,322. It is less than the security deposit he kept. He wants the $1,322 in addition to the security deposit! He claims if they pay this amount he won't sue for rent for the balance of the lease. I say he is banking on them being gullable enough to pay it! At this point we APPRECIATE any input or advice that may help. Thanks so much!

[LisaB4657]

Tell them not to pay. Let the landlord sue and try to explain to a judge why he never provided them with anything in writing until 5 months after the Illinois time expired.

[LisaB4657]

One more thing... according to Illinois law 735 ILCS 5/9‑213.1, if a tenant defaults then the landlord is required to take reasonable steps to mitigate his damages. That means that he has to try to re-rent the property. Your son's landlord didn't do that. If the landlord tries to sue your son then your son should file a counterclaim against his landlord for the full return of his deposit.

[ScottGem]

Here's the IL law on returning a deposit:

Illinois Security Deposit Return Act
765 ILCS 710/1

A lessor of residential real property, containing 5 or more units, who has received a security deposit from a lessee to secure the payment of rent or to compensate for damage to the leased property may not withhold any part of that deposit as compensation for property damage unless he has, within 30 days of the date that the lessee vacated the premises, furnished to the lessee, delivered in person or by mail directed to his last known address, an itemized statement of the damage allegedly caused to the premises and the estimated or actual cost for repairing or replacing each item on that statement, attaching the paid receipts, or copies thereof, for the repair or replacement. If the lessor utilizes his or her own labor to repair any damage caused by the lessee, the lessor may include the reasonable cost of his or her labor to repair such damage. If estimated cost is given, the lessor shall furnish the lessee with paid receipts, or copies thereof, within 30 days from the date the statement showing estimated cost was furnished to the lessee, as required by this Section. If no such statement and receipts, or copies thereof, are furnished to the lessee as required by this Section, the lessor shall return the security deposit in full within 45 days of the date that the lessee vacated the premises.
Upon a finding by a circuit court that a lessor has refused to supply the itemized statement required by this Section, or has supplied such statement in bad faith, and has failed or refused to return the amount of the security deposit due within the time limits provided, the lessor shall be liable for an amount equal to twice the amount of the security deposit due, together with court costs and reasonable attorney's fees.


Now, the kicker here is the more than 5 units. You don't make it clear whether this was an apartment building or what. But I tend to think the a court would apply this to the circumstances.

So your son, could counter sue for twice the deposit because the landlord never returned the deposit or an accounting within 45 days.

[pammaes]

HI Scott! Thanks for forwarding this to me. I have see this 765 ILCS 710/1 under renters right in state of Illinois. The lessor owned 4 units in a portion of the building, including the "owners unit" with a basement which my son occupied, paying $400 more a month than the other 3 units in the building. The statute did not have any info on buildings less than 5 units. Reason I contacted Ask Me Help Desk for more input. Appreciate any help and input given! Thank you!

[ScottGem]

I have see this 765 ILCS 710/1 under renters right in state of Illinois. The lessor owned 4 units in a portion of the building, including the "owners unit" with a basement which my son occupied,

Hmmm, I would see if there is a tenants association either in the town or for the state. I think you need to check with someone local to see how these laws would be interpreted. For example, this part; "A lessor of residential real property, containing 5 or more units"

Since the building contains more than 5 units, even though the lessor only owned 4 of them, the courts could apply this statute towards your son's situation. Or, is there is no statute regulating rental in a small building, there may not be any regulation of this. Its iffy and not being familiar with how Illinois courts look upon it hard to say conclusively. But a local tenant advocacy group might be able to tell. Or your son might try getting a conference with a legal aid lawyer who can find out.

My gut feeling is that the courts will side with your son at least to the point of throwing out the landlord's suit because he waited so long to file.

[pammaes]

Scott,Thanks for all your input! It's really much appreciated! We'll look into your suggestions.