As always, please review my disclaimer before reading this post by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the simple facts of life is that when we live in an apartment, we wear things out - be it carpet, wall painting, or other parts of the apartment. Long ago, in order to protect themselves from this damage, landlords established the idea of a security deposit - money paid up front by the tenant to help cover the costs of damage done during the tenancy. However, ever since landlords also decided to set security deposits at an amount based on the rent number, numerous questions have arisen. Can I use my deposit as my last month of rent? How do I get my deposit back? What responsibilities does the landlord have?
Security deposits present an interesting facet of landlord/tenant law, and mistakes in how security deposits are administered can have serious legal consequences. This blog post will seek to explain some of the law around security deposits, and how to protect yourself, as a landlord or a tenant, from problems with the use of security deposits.
VRLTA vs. Common Law
Most people will remember from my post in May that there are big differences in many situations between the law regarding leases that are governed by the Virginia Residential Landlord and Tenant Act versus the law regarding leases that are not. Security deposits are no different. VRLTA lease security deposits are governed entirely by Virginia Code Section 55-248.15:1, and these provisions can only be modified by the lease if the lease makes them friendlier to the tenant. Non-VRLTA leases, however, find no equivalent code section in Title 55, Chapter 13, and as such are governed almost entirely by the lease itself. As you might imagine, this means that for a security deposit, knowing which law governs your lease is critical.
Security Deposits Under VRLTA
Honestly, nothing I say here will better prepare you for handling a security deposit under VRLTA than actually reading Virginia Code Section 55-248.15:1 but here are the basics. First of all, the security deposit demanded cannot be more in value than two months' worth of rent. As for the use of your security deposit, once your lease ends, the landlord has 45 days to send you an itemized list of how your security deposit was used, and if there is any of it left, then that is also the landlord's deadline to pay you the remainder. Further, if the landlord takes money out of your security deposit during the rental (so, before you have moved out, perhaps if there's some damage that needed to be fixed while you still lived there), the landlord must notify you that he or she is doing that within 30 days of the landlord doing so.
There are other provisions in there too, but those are the main ones. It is important to notice that failure by the landlord to give notice of the use of the security deposit within 45 days waives the landlord's right to use the security deposit. This means the landlord must then refund the full amount, and if the landlord does not, as is typical for VRLTA, the tenant may sue, and may collect attorneys' fees upon winning.
Security Deposits Under Non-VRLTA Leases
As is typical for non-VRLTA leases, security deposits are governed almost entirely by the lease itself. I cannot count the number of times I've had a consult with a potential client that goes like this:
Potential Client: "It's been 45 days, and I haven't heard from the landlord about my security deposit."
Me: "Well, where in the lease does it say that the landlord has 45 days?"
Potential Client: "I saw it online that it's a law."
So, let me be clear - if that's what you think, then you have seen the VRLTA law, and if your lease is not governed by VRLTA, then that law does not apply to your lease.
When I represent a non-VRLTA landlord and I am dealing with a security deposit, the first thing I do is look at the lease. How does the lease say that the security deposit is to be dealt with? If it doesn't say anything about how the security deposit is actually returned, then as a general rule I follow the VRLTA timeline. Most sophisticated landlords, especially ones with attorneys, will follow the VRLTA timeline, even though they do not have to, because it is a simple set of rules to follow.
But, as I said, that timeline is not manadatory. My advice is that if after 60 days your non-VRLTA landlord still has not contacted you about your security deposit, and the lease is silent about how to handle the security deposit, then you should take action. I recommend writing a letter to the landlord giving about two weeks to send you an itemized list and a refund of the remainder of your security deposit. If you do not get a response, you can file suit for your security deposit. Just be aware that unlike VRLTA, you probably will not be entitled to attorneys' fees.
Can I Use My Security Deposit for Rent?
I also cannot count the number of times I've had someone come to me saying "I don't understand why I got this Pay or Quit - it's my last month, and they have my security deposit. That covers the rent!" The short answer is, no it doesn't.
While this confuses many people because often a security deposit is equal to a month of rent, a security deposit is protection against damage, not against unpaid rent. As a result, you cannot use your security deposit to pay a month of rent. For a non-VRLTA lease, the landlord may agree to let you do that as an exception, but if the landlord does not expressly agree (and usually this needs to be in writing), then you cannot do it. For a VRLTA lease, the landlord does not have the right to let you do that, and after you move out, unpaid rent is the last thing a security deposit can be applied against - meaning you are subject to suit, and probably even to paying the landlord's attorneys' fees, if you just skipped out on your last month of rent.
In short, unless you've got a written agreement from your non-VRLTA landlord saying otherwise, do not assume you can just use your security deposit as your last month of rent.
Conclusion
Security deposits have many pitfalls in the law, and the law governing them is dramatically different between VRLTA and non-VRLTA leases. If you are uncertain about how to handle an issue related to your security deposit, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation with me. The initial consultation is free for up to half an hour!
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