John Roska: On damage deposits and landlords

Q: My landlord says I can't use my deposit to pay my last month's rent, before I move out. Why not? I'm current on the rent, and haven't caused any damages. When do I get it back?

A: The landlord won't know for sure there's no damages until you're out. Using up the deposit before then — if there's unpaid rent or damages after all — might leave the landlord empty-handed. That's exactly the risk deposits are supposed to protect against.

A deposit is basically a pre-paid reserve the landlord can use to settle accounts once the lease is over. Landlords prefer that to chasing after tenants after they're gone.

The deposit provides general protection against whatever loss the tenant may cause the landlord. That could be unpaid rent, or expenses for cleanup and repairs. Illinois law specifically says a "security deposit" is "to secure the payment or rent or compensation for damage."

It doesn't matter, then, how pre-paid money is labeled at move-in. Whether "deposit" or "first month's rent," it can be applied to any debt owed at move-out.

If nothing's owed for rent or damages after moving out — or your deposit exceeds what's owed — you're entitled to a refund.

How soon your landlord should return your deposit depends on the number of units where you rented. If there are more than five units, the law gives landlords 30 days from move-out to notify you of any deductions from the deposit, and 45 days to actually return money.

Landlords who violate this law can be liable for double the deposit, and attorney fees.

The number of units is determined by the number in the structure or complex where you lived — not the total number of units the landlord may have, spread out all over town.

If there are less than five units, no law sets a specific deadline for returning deposits. The landlord must be reasonable, though, and the above deadlines for larger landlords give some idea what "reasonable" might be.

A separate Illinois law requires landlords with 25 or more units to pay interest on deposits. In 2013, the rate will be 0.005 percent.

Besides unpaid rent, landlords can deduct for damage "beyond ordinary wear and tear."

One case said that "wear and tear," which the landlord should not deduct for, is "the expected, often gradual, depreciation of an item."

But, it can be a bit more than that. One case said that "numerous" nail holes, which could be easily spackled and painted over, was ordinary wear and tear.

And in another context, federal regulations requiring landlords to allow the installation of satellite dishes say that "marks, scratches and minor damage to carpets, walls and draperies" are ordinary wear and tear.

On the other hand, other Illinois cases say it's OK to deduct from the deposit for things like dented garage doors, missing furniture and dirty stoves or refrigerators. That's not ordinary wear and tear.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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Sancho Panza wrote on May 19, 2013 at 2:05 pm

The usual damage deposit scam around town is for landlords to charge for 10 to 20 hours of "cleaning" at the end of a lease no matter the condition. It is not enough dollars for individual college students to hire a lawyer to take them to court, but multiplied over the number of units the major companies (JSM, Bankier, Hunsinger, etc) own accounts for hundreds of thousands in profits.

rsp wrote on May 19, 2013 at 8:05 pm

That's why they should first document the conditions before moving in, at move out after they clean, and keep the legal aid for students. It's free. Also insist on going on the walk thru, and let them know you have pictures. Be professional. Treat it as an interview. Have a witness who doesn't talk. See what happens.