If you’re a renter in NY State, you’re familiar with security deposits. And if you’ve rented at multiple locations over the years, you may have encountered a landlord that retained some or all of your deposit after you moved out. Not all landlords know the details of the law – and some just want to see if they can scrape a little bit more off the top. Your best defense against losing your deposit, besides a good batch of cleaning products, is knowledge of landlord/renters rights and the real estate laws that govern these.
Most rental agreements include terms such as first and last month’s rent plus security deposit due at signing. Sometimes “last month” is considered the security deposit, so make sure you’re clear on the terms. In most cases, there is no upper limit in New York State to what a landlord can request for a security deposit; the amount is really driven by what the market will allow. In most cases, especially in Rochester and Western NY, the deposit is equal to one month’s rent.
What the law does state, however, is that all deposits are refundable if the renter meets the required conditions in respect to the rental property. In other words, a landlord cannot ask for a non-refundable deposit. So what can a landlord deduct from what a security deposit after a renter moves out? First, if there is any rent due that is left unpaid, the amount can come out of the security deposit. Second, renters are liable for the cost of any repairs that are in excess of typical wear and tear. That’s where it gets a little bit more subjective, and for good reason.
Types of Repairs that Typically Cannot Be Deducted from a Security Deposit
Any deterioration of the rental property due to normal use and the effects of time are not subject to a renter’s security deposit. This is slightly different from the language you might see in your lease, which might state that your rental unit “has to be returned to its original condition” upon the renters departure. However, the courts in NY State historically allow “reasonable wear and tear” regardless.
But just what does constitute “reasonable wear and tear”? Here are some examples:
- Faded paint and curtains
- Dusty blinds (and dust in general)
- Wear and tear on carpets due to normal use and placement of furniture
- Worn door hinges and locks that are still functional
- Burned out light bulbs
- Problems with plumbing that are not the result of neglect
- Replacement batteries for smoke detectors
- Markings on walls from door handles
- Small holes in walls from hanging paintings and artwork (as long as they’re not excessive in size or volume)
Types of Repairs that Typically Can Be Deducted from a Security Deposit
The cost to repair damage caused by a renter's neglect or misuse, or damage caused by any guests of the renter’s, are all subject to deduction from a security deposit. That’s the intent behind the deposit – it’s a type of insurance for a landlord. Security deposits are also subject to a few things that are not often considered “damage”, such as repainting walls that a renter painted after they moved in, and removal of trash and any other items (including curtains) that a renter left behind after they move out. Here are some additional examples of things that may be deducted from a security deposit:
- Excessively scratched paint on the walls
- Holes in the walls, even from hanging paintings and artwork if they’re excessively large or numerous
- Stains, tears, or burn marks on carpets or curtains that weren’t there prior to the renter moving in
- Doors with broken hinges, off tracks, or with broken locks
- Broken or damaged windows, tiles or countertops
- Replacement of items that you take with you when you leave (including curtains), if there were in the apartment when you moved in
- Plumbing damage due to clogs that weren’t taken care of in a timely manner
- Flea infestation due to pets
- Smoke damage inside the apartment caused by smoking or burning candles
- Cleaning necessary for excessive filth on floors, appliances (especially the stove), and fixtures, including excessive mildew on tiles
- Broken appliances caused by neglect, as opposed to age and normal wear and tear
Ways Renters Can Avoid Losing Some or All of a Security Deposit
Precaution is the best approach. Take photos of your apartment before you move in and notify your landlord of any existing damages. At the end of your lease and after you’ve moved all your things out and cleaned the rental unit, take photos again. If you simply don’t have time to clean the apartment, consider hiring someone to do it for you. The cost is usually much less than if you leave it up to your landlord.
In you’re still concerned about how much of your deposit might be returned to you, ask your landlord to inspect your apartment before you move out and make a list of anything that he would take out of your deposit, then fix, clean and/or replace the items yourself. Landlords are not required by law to comply with this request, but often they will respond in the affirmative.
Landlords are also not required to give you a chance to fix things first if you’ve already moved out and turned in the keys. However, the law does require the cost of any necessary cleaning and repairs to be “reasonable”, which along with the subjective nature of the word “excessive” in the examples above, is why disputes in this area must be up to the courts to decide. You should also expect your deposit to be returned to you in a “reasonable” time. The general expectation is within 30 days unless it’s otherwise stated in your lease. If it takes longer, write a letter to demand it in accordance to laws and expectations. If you still do not receive your deposit, or you feel that what was returned was not the appropriate amount, contact a Real Estate lawyer to discuss your best options.