Missouri has a strict law governing security deposits for residential leases that provides protections for tenants. Tenants can pursue legal action against landlords who violate the law.
- Introduction
- Basic requirements of the statute
- Special provisions for carpet cleaning
- Pre-set deduction amounts
- Method of sending inspection notices, accountings and refunds
- Security deposit accounting to multiple tenants
- Forfeiture clause not enforceable
- Meaning of “ordinary wear and tear”
- Tenant security deposit lawsuits
Introduction
Landlords who do not strictly comply with the Missouri security deposit statute, §535.300 of the Missouri Revised Statutes, are subject to a penalty of twice the amount wrongfully withheld from a security deposit. Missouri courts deem the statute to be a “consumer protection” law and thus strictly enforce the statute. Residential lease provisions that conflict with the statute will not be enforced by the courts.
Exceptions: The security deposit statute only applies to residential lease security deposits. It does not apply to:
- Pet deposits
- Commercial lease security deposits
Basic requirements of the statute
If a landlord fails to comply with any of the following requirements in any respect, or if a landlord wrongfully withholds all or part of a security deposit, the tenant is entitled to recover twice the amount wrongfully withheld:
1. Landlords cannot collect a security deposit exceeding two months rent.
2. Landlords must hold security deposits in an account at a bank, credit union or other depository institution that is insured by an agency of the federal government.
3. Landlords must give the tenant reasonable notice of the date and time the landlord will inspect the premises after termination of the rental agreement to determine the amount of security deposit to be withheld. The inspection notice must be given either:
a. In person, or
b. In writing at the tenant’s last-known address (which can be the address of the leased premises if the tenant did not provide a forwarding address).
4. The inspection must take place at a reasonable time, and the tenant has the right to be present.
5. Within 30 days after termination the tenancy, the landlord must either:
a. Return the full security deposit to the tenant, or
b. Furnish to the tenant a written itemized list of damages (called a “security deposit accounting”) for which the security deposit, or any portion thereof, is withheld, along with balance of security deposit, if any.
Note 1: If the landlord wants to deduct an amount for carpet cleaning from the security deposit, the landlord must also send the carpet cleaning bill to the tenant along with the itemized list – see Special provisions for carpet cleaning below.
Note 2: A landlord can comply with the 30-day requirement by timely mailing the security deposit, or the list of damages and any balance of the security deposit, to the last-known address of the tenant. It is not an excuse for failing to timely mail the accounting that a tenant did not provide a forwarding address. If no new address is known, the landlord can mail the materials to the address of the formerly leased premises. It would be the tenant’s responsibility to file a forwarding address with the Postal Service.
6. The only amounts a landlord is entitled to withhold from the security deposit are:
a. Unpaid rent pursuant to the lease.
b. Costs incurred to restore the property to its condition at beginning of lease, except for ordinary wear and tear (see Meaning of ordinary wear and tear below). Costs can include repairs, replacements and cleaning.
Note: The statute does allow a landlord to deduct routine carpet cleaning at the end of the lease from the deposit whether or not the carpet is damaged or soiled beyond ordinary wear and tear if there is appropriate language in the lease. See Special provisions for carpet cleaning below.
c. Compensation for actual damages resulting from the tenant’s failure to give adequate notice to terminate the tenancy, provided that the landlord must make reasonable efforts to re-lease the property and thereby reduce the amount owed.
If a landlord’s legitimate damages exceed the security deposit, nothing prohibits the landlord from attempting to recover those damages by filing suit against the former tenant, but the landlord must give credit for the security deposit against such damages.
Special provisions for carpet cleaning
The statute allows a landlord to include a clause in the lease specifying an amount that will charged against a security deposit for routine carpet cleaning at the end of the lease. If such a clause is included in the lease, the lease also must notify the tenant that there may be an additional deduction from the security deposit if more expensive carpet cleaning is required because of carpet conditions exceeding ordinary wear and tear.
Whether or not carpet cleaning is mentioned in the lease with regard to the security deposit:
1. Any carpet cleaning charge against a security deposit cannot exceed the actual cost of the carpet cleaning.
2. A copy of the bill for carpet cleaning must accompany the security deposit accounting if carpet cleaning is being deducted from the security deposit.
Pre-set deduction amounts
Some landlords include in their leases a schedule of pre-set amounts that will be deducted from security deposits for various types of damage.
However, when a security deposit claim is litigated, the court will award a landlord only the actual amounts expended for repairs, replacements and cleaning. If pre-set amounts that were deducted from a security deposit exceed the actual costs, the court may find that there was a violation of the security deposit statute and award the tenant twice the difference.
Method of sending inspection notices, accountings and refunds
The security deposit statute originated in an era when most business was conducted either in person or through postal mail. It has not been updated to reflect new ways of doing business since the advent of computers, the internet and smartphones.
Thus, it is unclear whether security deposit inspection notices may be sent to tenants by email or text message. Arguably, both emails and text messages constitute written communications and therefore comply with the requirement for a written inspection notice because both email and text messaging can be viewed as modern forms of “mail.”
It is also unclear whether a security deposit accounting may be sent to tenants by email and refunds sent electronically. Again, because email can be seen as a modern form of “mail,” arguably the accounting may be sent by email. Likewise, electronic refunds may be in compliance with the statute because making refunds electronically involves written communication over the internet to set up an ACH transfer or electronic payment through an online tenant portal.
In view of the uncertainties, however, it may benefit a tenant involved in litigation over a security deposit to argue that a landlord is not in compliance with the security deposit statute if the inspection notice and/or security deposit accounting was sent by email or text message, or if a refund was made electronically.
Security deposit accounting to multiple tenants
Many landlords include language in their leases stating that one security deposit refund check and one copy of the accounting will be sent to only one of the tenants in situations where there are multiple tenants. The tenant receiving the refund is then expected to send the accounting and appropriate shares of the refund to the other tenants.
This procedure is a violation of the security deposit statute for these reasons:
If the single tenant designated to receive a security deposit refund and accounting receives it near the end of the 30-day period and then sends his or her former co-tenants their shares of the refund and copies of the accounting, the former co-tenants will not receive their refunds and accounting copies within 30 days and thus will have a claim against the landlord for violation of the statute.
If the single tenant designated to receive a security deposit refund and accounting keeps the entire refund, all the other former co-tenants have a claim the landlord for violation of the statute – as well as a claim against the tenant who received the refund.
Forfeiture clause not enforceable
Some leases, particularly those obtained from non-Missouri sources, contain a clause purporting to “forfeit” the security deposit if the tenant violates the lease.
Because the security deposit statute is deemed to override such a lease clause, the courts will not enforce a forfeiture, and if an issue relating to the security deposit is litigated, the court will always give the tenant credit for the security deposit against all monetary losses (unpaid rent, property damage, etc.) a landlord may claim.
Thus, if a landlord has not given credit for a security deposit based on such an illegal forfeiture clause, the tenant will have a claim against the landlord for twice the amount of the deposit.
Meaning of “ordinary wear and tear”
There is no clear-cut definition in the statutes or in Missouri court cases of the meaning of “ordinary wear and tear.”
Courts describe the determination of ordinary wear and tear as being an “issue of fact” to be decided by the judge (or in some cases, by a jury). In a case involving property damage, this means that the judge will consider all the facts introduced into evidence by both sides and try to make a reasonable, common-sense evaluation of whether particular items of claimed damage are within or beyond ordinary wear and tear.
The word “ordinary” in the phrase :ordinary wear and tear” invokes well established principles in the law relating to “negligence.” The courts define negligence as the failure to exercise that degree of care that the average ordinarily careful person would exercise in the same or similar circumstances. To give an example, the ordinarily careful person would take care when burning candles not to allow wax to drip onto carpets, so wax embedded in carpets is likely to be found to be damage beyond ordinary wear and tear.
Note: It is very clear that intentional damage done by a tenant will be found to be in excess of ordinary wear and tear. A good example is a hole caused by an angry tenant punching or kicking a wall or door.
Some examples and observations from our long experience in dealing with the issue of ordinary wear and tear in court may help:
Repainting: It is to be expected in the ordinary course of living in a rental unit that some soil will accumulate on painted surfaces. Unless there is an unusual amount of soil, a court likely would find that repainting costs cannot be charged to the tenant. However, major stains and scuff marks may prompt the court to award painting costs.
Tenant repainting: Another situation in which repainting costs generally are awarded is when the tenant repainted without permission and did a sloppy job, or used colors not approved by the landlord.
Holes: Another painting issue involves holes in walls, often resulting from the tenant having hung pictures and photographs. If the tenant has filled the holes with spackling that matches the paint, and there is no other particular reason to paint, the court likely would not award repainting costs. However, if the holes have not been filled, or the holes were filled with spackling that does not match the wall color, the cost of filling the holes and/or the cost of painting may be awarded.
Routine repainting: Some landlords have a routine practice of totally repainting every time a rental unit turns over – in this situation, the court will not award repainting costs unless there was paint damage beyond ordinary wear and tear.
Flooring: Issues often arise concerning recovery for damage to carpets, vinyl flooring, linoleum and wood floors.
Carpets: If the tenant has been careful with the carpets and routinely vacuumed during the tenancy, any normal traffic wear on the carpets likely will be found to be within ordinary wear and tear. However, if the carpets have stains that cannot be removed by normal cleaning processes, or tears or burn holes, then the court likely will give the landlord an award for replacing the carpets. The court may require, however, that the amount awarded be pro-rated based on the expected life of the carpet – for instance, if a carpet is expected to last 15 years and must be replaced after only five years, then the court should award only 2/3 of the replacement cost.
Vinyl flooring and lineoleum: Normal traffic wear on vinyl flooring or linoleum will not be deemed compensable by the court. However, if the material is stained such that it cannot be cleaned, or has burn holes, or is ripped, then the replacement cost may be allowed. As with carpet, the court may require the replacement cost to be pro-rated based on the expected lifespan of the material.
Wood floors: Again, normal traffic wear on wood floors will not be seen by the court as compensable. However, if the wood flooring is scratched, gouged, stained, etc., then the cost of refinishing the floor likely will be awarded. In extreme cases, the court might allow an award for replacement of a wood floor, again requiring pro-ration based on the expected lifespan of the wood flooring material.
Hardware: In the normal course of usage, certain items of household hardware will wear out and need to be replaced, and in such cases, the court will not give an award for the replacement. However, if the hardware item was clearly abused or intentionally damaged, then the court likely will grant an award for replacement. For instance, if a doorknob becomes worn and unusable as a result of normal use, no replacement cost will be granted; however, if the doorknob was ripped off in a fit of anger, then the replacement cost will be awarded.
Plumbing fixtures: As with hardware, plumbing fixtures will wear out with age and parts will need to be replaced. Toilets and faucets are particular problems. Unless it is clear that the plumbing fixture has been abused or intentionally damaged, the court is not likely to award replacement costs. However, we have seen awards for cracked sinks, toilets and tubs, cracked toilet seats (unless the seat was of low quality to start with), heavily soiled tubs and sinks, and drain stoppages caused by, for instance, items such as sanitary napkins or disposable diapers having been improperly flushed in the toilet.
General cleaning: Assuming the unit was clean when the tenant moved in, the landlord’s cost to restore the unit to its initial state of cleanliness is recoverable – because the tenant’s obligation is to return the unit in the same condition as when originally occupied, ordinary wear and tear excepted.
Tenant security deposit lawsuits
If a tenant believes a landlord has violated the security deposit statute, in most situations the best remedy is for the tenant to file a case against the landlord in Small Claims Court.
The maximum amount a Small Claims Court judge can award is $5,000, which will usually cover a tenant’s security deposit claim even if the tenant is entitled to double the amount the landlord wrongfully withheld.
Read more about Small Claims Court.
Copyright © Scott Law Firm Professional Corporation