Small Claims Court? Help!

My boss's lawyer friend put it like this: assume each side will be awarded 50%.

Does this mean that OppossumQueen should get at least 50% of the security back? How does one prove that they deserve the whole deposite back?

Photos of the apartment before and then after residency? What happens if you don't have photos, or if your landlord didn't do a walkthrough before or after? I'm just curious how one side proves that they are in the "right", without it turning into one person's word against the others.

Subject: Re: Small Claims Court? Help!

OpossumQueen wrote: We might have to take our last landlord to small claims over our security deposit but I want to know if it's worth the hassle. Has anyone been through this process? Costs (money, time). Tell me all!



the backstory for those who will ask:
We wanted to move, he couldn't find tenants so was happy to let us go month to month at the end of our lease until we found a new place. Before choosing a move date, he agreed that we could move whenever, as long as we gave 30 days notice. We found a place and gave 30+days notice. He claimed he would get the check to us soon.

That never happened and now we're pushing him for it and he says that he doesn't even owe it to us, then later says all he has to give us is $500 (of a $1500 deposit and we left the place far better than we found it).

Been there, done that, got my money back. This was twice - on a commercial space rental and an apartment. On the apartment, you are also entitled to INTEREST - so chck your lease to find out how much, and calculate that into your suit.

My understanding is that interest only is applicable if there are a certain number of units in the building and/or if the landlord put the money in an interest-bearing account...something like that.

check www.tenant.net.

They'll know the scoop

http://www.oag.state.ny.us/realestate/guide_intro.html#6
Information from the AG regarding rent security deposits, and a general tenant's rights guide.

IIRC from 1L propertly law, any NY landlord may if he chooses put your security deposit in an interest-bearing account, but must pay the interest over to you. Only landlords in buildings containing N+ number of units MUST put the funds in an interest bearing account. Again, any time an interest-bearing account is used, the interest is the legal property of teh tenant.

In addition, again IIRC, at least on rent stabilized and perhaps on all leases there is a NYC law providing for treble damages on wrongfully withheld security deposits. That is, if your deposit were $1,000, all of was wrongfully withheld, prevailing in court would result in $3,000 in damages paid. This is intended to be a disincentive to landlords, encouraging them to return security deposits in good faith and timely. Do not asume that treble damages apply to you, but research wether they do and request them if applicable (bring a copy of the law and be prepared to explain and document how you meet the requirements it shows). Assume that perhaps this is where the judge might be permitted to use discretion, perhaps.

I believe you may be prohibited from filing in "small claims court", but rather must file specifically with the Housing Court:
http://www.courts.state.ny.us/courts/nyc/housing/index.shtml. If you attempt to file other than in Housing, my guess is that you'll either get a dismissal with leave to file in the correct court, or that prior to file they will deny your papers and refer you to housing court.

Finally: WHENEVER you are appearing in court focus on documenting each and every material opinion and fact that supports your claim. I don't know how long you lived in your apartment, but if you can bring receipts or proof of timely payment of rent do so for as many months as you possibly can (eliminates any argument by landlord that he retained deposit to pay past-due rent, AND gives you credibility). Bring documentation that you left the apartment in substantially the same condition in which it was delivered to you at the beginning of your lease, except for normal wear and tear. I'm betting you don't have pictures (though people should make it a habit to take pictures of every apartment on move-out day and retain them at least until the deposit is returned), but perhaps you have a friend who helped move who will write an affidavit or stand up and testify that he/she personally witnessed the apartment in good condition and clean. This, of course, helps you foreclose a successful argument by the landlord that he rightfully retained the deposit for cleanup/repair costs. If he makes that claim, be sure to be able to (honestly) assert that you feel no repairs you are obligated for were necessary, and request a statement of his costs (he was obligated to provide same if applicable when he notified you he was retaining any deposit). Be prepared to document the notice you have (I hope you did it in writing), and ALL key facts. DO NOT let yourself get emotional, hyper, worked up or upset while you are speaking. Be calm and very respectful, and let your documentation and any good witnesses speak for themselves.

Note that IIRC, there is a NYC law that asserts that the ONLY purpose for which a deposit can be retained is repairs, and that documentation must be granted when a deposit is so retained. If his ONLY argument is that he believes he was entitled to more notice, or that the deposit covers past due rent, procedurally he would still be oblgiated to issue the deposit and then sue you for back rent. As such, you might research these laws a little bit and send him a certified letter identifying the due amount, put a reasonable deadline on it (say, 14 days) and then explain that if you do not have a check in your hands by the deadline you'll have no option but to go to Housing Court because ... (and explain your rationale, with exact reference to the laws, and why they apply to you). I bet by being direct and assertive in this manner you may be able to get a response without having to go to court - landlords hate to be dragged into court over this stuff. Point out in your letter that had the deposit been used for its only proper purpose of repairs, you would have expected to receive a detailed invoice as such along with the remainder of the deposit quite some time ago. Let them know that if you do have to go to court, you will ask for treble damages. Let them know it would be much better if they would issue you your deposit back in the amount of $X no later than [date] to resolve this amicable. And copy your local City Councilperson on the letter - when I lived in Hells Kitchen during law school I had a horrible time getting a deposit back from a corporate landlord and finally I sent a letter like I've suggested here w/ a copy to my councilwoman. Doing so got quick action out of the landlord, and within days I received a follow up from the councilwoman's office to see if further assistance was needed.

I'm sorry this has been so long, I'm just trying to give you as much information as I can. I am NOT a licensed attorney (yet - will be sworn in in September), and even more than that I am NOT your attorney, I have not reviewed all the facts, all the laws, and this is my opinion based on personal experience rather than professional consideration. As such, and I'm sure you know this, I am not giving you legal advice and therefore you should not rely on the accuracy or applicability. But, I also want to see you get what you deserve - landlords who charge SO much rent in this city and then try to play games by not returning deposits make me unbelievabl angry. [/url]

(Again I am not not speaking as a lawyer or someone who is giving you any kind of legal advice you should rely upon. We do NOT have an attorney-client relationship, and I am NOT a licensed attorney. It's very important you understand that.)

Don't be fussed about the "verbal" agreement on the month to month, or at any rate, don't anguish over it.

Even outside the realm of rent-stabilization, tenants are an INCREDIBLY protected class in New York City. The law is rife with rules for YOUR protection that apply regardless of whether you signed or verbally entered into a contract for them, or sometimes even if the landlord tried to trick you out of them. (For example, certain warranties are NOT waived even though a landlord might tell you they are, even if landlord includes a lease provision where you waive them. Tough luck, landlords - thousands of years of renters getting screwed by greedy landlords have left the law with the rightful pro-tenant slant).

That being said, my understanding of the law on this point is that when your lease ended and you tendered a rent check which was cashed by the landlord, you had a month-to-month tenancy on the lease terms (unless changed in mutually signed writing) for the month you paid for. When you sent in your next month's rent, the lease terms extended for another month. And so on and so forth. That's why I say your lease document remains important, because even though expired on its face it is the description of the terms of your month-to-month tenancy. Remember, your tenancy/extension does not require a mutual agreement between you and landlord (whether written or verbal). It was created by the action of your offering a check and his accepting it. Thus, practically, the expired lease terms apply to each and every month for which you can show a cashed rent check.

Don't worry too much about being in a he-said-she-said scenario, because you can make this pretty cut and dry if you signed a lease that called for rent and a deposit, paid rent and a deposit, lease expired but was extended on a month-to-month basis, you terminated and moved out, leaving the apartment in documentedly clean, good condition free of the necessity of repairs and the landlord has not returned the deposit. I would think your claim against the landlord boils down to that scenario, and you have fairly good documentation of each point.

But again, if you send the damn letter, you probably won't even have to GET to the point of presenting a case in front of a judge - you'll save time, costs and anxiety.

Here's another suggestion - because I obviously want to see you get this resolved and not lose a lot of money (and because when landlords think they can get away with it, they will try it on ALL their tenants!). I just read a NYT article that suggested calling the AG which has an informal procedure in place to help tenants resolve these issues without the need to go to court.
http://query.nytimes.com/gst/fullpage.html?res=9C02EEDA113FF937A25750C0A96F958260
''The attorney general's office has an informal procedure in place to try to resolve security deposit issues,'' he said. The number to call is (212) 416-8345.