What are a tenant’s rights to receive the return of their security deposit?

UPDATED: Nov 12, 2010

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What are a tenant’s rights to receive the return of their security deposit?

I signed a lease on a house that is being foreclosed on. The actual owner moved to FL and a relative of theirs is acting as the “rental agent.” The lease states we had to deep clean the house before move in and that we are responsible for fixing all repairs. Our heat went out and he refuses to fix it. The house was filthy and we spent a week and a half cleaning it so that it was suitable to live in. Originally he told us that our deposit was in case we defaulted on rent but now he is holding it for damages. The house is in better condition than when we leased it.

Asked on November 12, 2010 under Real Estate Law, Colorado


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

The security deposit is for cleaning and excludes normal wear and tear.

You could file a lawsuit in Small Claims Court to recover the security deposit when you move out.  Your damages should include the amount of the security deposit plus court costs.  Court costs include the court filing fee and process server fee.  If your state has a special landlord/tenant court, then you should file your lawsuit there instead of in Small Claims Court.

It is the landlord's responsibility to maintain the premises in a habitable condition; such as repairing the heater in your situation.  In every lease there is an implied warranty of habitability which requires the landlord to comply with local and state housing codes to maintain the premises in a habitable condition.  You could sue the landlord for breach of the implied warranty of habitability.  A breach of the implied warranty of habitability allows the tenant to either withhold rent and remain on the premises and defend against eviction or if the tenant moves, terminate the obligation to pay rent for the balance of the term of the lease.  An alternative to filing the lawsuit for breach of the implied warranty of habitability would be to have the heater repaired and deduct the cost of repairs from your rent. 


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