Landlord Advice

[BBQorMILDEW]

I have had the same couple live at my residence for the past two years,

Long story short,

I moved back into my house last weekend. I had to do some major fixes around the house. There was wax that totally ruined my carpet, as well as cigarette burns.

I went with my tenants and we did instead of a checklist we took around 500 pictures before i fixed anything. It was carefully marked "current conditions of the house" I signed it as well as my tenants.

So i went ahead and did the fixing, the couple's damage deposit was 1300 and i spent around 900 dollars fixing up the place. At first they were fine with the accessment but now they have reneged on our agreement and want the full 1300 dollars..

It turns out that because i didn't do the "checklist" i am SOL.. which is awful..
I have told them that i would meet them halfway and give them 695 dollars (which is more than fair). They wrote me an email which was 3 pages of them rambling on about how unfair i am and ect....

I could barely sleep last night due to this stress, I don't have much experience in this field and i don't have the money to take these guys to court.

What do you guys think would be the best course of action??

Thanks for any insight guys..

[photon]

Well as far as taking them to court, you have their money so they'd have to take you to court to get it back.

I don't understand, you said you did a walkthrough with a checklist and you both signed with them and took pictures, then you said you didn't do the checklist.

Do you mean you didn't do the checklist before they moved in?

If that's the case then yes you are screwed, without a signed move-in walkthrough you can't "prove" they did any of the damages.

[onetwo_threefour]

I think he's saying he took a bunch of photos and put them together and had them sign something saying that these photos represent the current state of the house. But yes I think he's SOL if that's the case. You need a proper move in and move out inspection to keep any damage deposit unles you want to try and convince a court that there's no possible way the damages could have been pre-existing.

Of more concern, if the deposit isn't returned, he could be facing large fines under the Residential Tennacies Act (i believe up to $10,000). That wouldn't require the tenants to go to court at all necessarily if they made a complaint against the landlord.

Those inspection reports are critical...

[Kjesse]

There is no need for a "checklist", though using a checklist is a good way of doing it. What you have to do is a move-in inspection, and a move-out inspection, and provide a report for each.

Inspection report
18(1) A landlord and tenant shall, within one week before or after
a tenant takes possession of residential premises, inspect the
premises, and the landlord shall provide the tenant with a report of
the inspection that describes the condition of the premises.
(2) A landlord and tenant shall, within one week before or after a
tenant gives up possession of residential premises, complete an
inspection of the premises, and the landlord shall provide the tenant
with a report of the inspection that describes the condition of the
premises.
(3) The landlord may complete the inspection without the tenant if
an adult person who falls within the definition of tenant has refused
to take part in 2 inspections suggested by the landlord to take place
(a) on different days,
(b) on days that are not holidays, and
(c) between 8 a.m. and 8 p.m.
(4) A report must contain the prescribed statements and be signed
in accordance with the regulations.
1991 c18 s15


And here's the rules about making deductions from the deposit. It says nothing about a "checklist":

48(1) In this section,
(a) "normal wear and tear" in respect of residential premises
means the deterioration that occurs over time with the use
of the premises even though the premises receive
reasonable care and maintenance;
(b) "security deposit" includes any amount owing to the
tenant as interest under section 47 at the time of the
expiration or termination of the tenancy.
(2) A landlord who holds a security deposit shall within 10 days
after the day that the tenant gave up possession of the premises
(a) deliver the security deposit to the tenant,
(b) if all or part of the security deposit has been deducted in
accordance with the conditions agreed to by the tenant,
deliver to the tenant the balance of the deposit, if any, and
a statement of account showing the amount of the deposit
used, or
(c) if the landlord is entitled to make a deduction from the
security deposit in accordance with the conditions agreed
to by the tenant but is unable to determine the correct
amount of the deduction, deliver to the tenant the balance
of the deposit, if any, that the landlord does not intend to
use and an estimated statement of account of the
anticipated deduction and within 30 days after the day that
the tenant gave up possession of the premises deliver to
the tenant the remaining balance of the deposit, if any, and
a final statement of account.
(3) If a landlord fails to return all or part of a security deposit to a
tenant in accordance with subsection (2), then, whether or not a
statement of account was delivered to the tenant, the tenant may
commence an action in a court to recover the whole of the deposit
or that part of the deposit to which the tenant claims to be entitled.
(4) In proceedings taken under subsection (3), the court
(a) shall determine the amounts, if any, that the landlord is
entitled to deduct from the security deposit in accordance
with the conditions agreed to by the tenant, and
(b) if the deductions so determined are less than the amount
of the deposit, shall give judgment in favour of the tenant
for the balance.
(5) No deduction may be made from a tenant's security deposit for
normal wear and tear to the residential premises during the period
of the tenant's tenancy.
(6) A landlord shall not make a deduction from a tenant's security
deposit for damages to the residential premises unless the
requirements respecting inspection reports under section 18 have
been met.

In short, as long as you have done a move-in inspection and report, and a move out inspection and report, you can deduct from their security deposit for damages which are not "normal wear and tear".

No move-in inspection/report = no right for any deduction for damages.

And here's what the regulation says about what must be in an inspection report:

Inspection reports
4(1) In this section, "landlord" includes a landlord's agent and "tenant"
includes a tenant's agent.

(2) This section sets out the statements that must be contained in a
report of an inspection made under section 18 of the Act and the signing
requirements for the report.

(3) A report must contain the following statement:

Inspections should be conducted when the premises are vacant unless
the landlord and tenant or their agents otherwise agree.

(4) When an inspection is conducted by the landlord and the tenant, the
report must contain the following statement and be signed by the landlord:

The inspection of the premises was conducted on (date) by (landlord
or landlord's agent) and by (tenant or the tenant's agent).

(5) When an inspection is conducted by the landlord and the tenant, the
report must contain one of the following statements and be signed by the
tenant:

(a) Tenant's statement

I, (name of tenant or tenant's agent) , agree that this
report fairly represents the condition of the premises.

(b) Tenant's statement

I, (name of tenant or tenant's agent) , disagree that this
report fairly represents the condition of the premises for the following
reasons:

(6) When the tenant refuses to sign one of the tenant's statements
referred to in subsection (5), the report must contain the following
statement and be signed by the landlord:

The tenant or tenant's agent present at the inspection refused to
sign the tenant's statement.

(7) When an inspection is conducted by the landlord without the tenant
being present, the report must contain the following statement and be
signed by the landlord:

The inspection of the premises was conducted on (date) by (landlord
or landlord's agent) without the tenant or the tenant's agent being
present.
AR 228/92 s4;251/2001

[BlackArcher101]

I agree that photos will be sufficient as a checklist. However, if a before photo wasn't taken, then there is no baseline to compare the current condition photos to, thus making it difficult to prove the damage is theirs. Especially if the photos you have are marked "Current Condition" instead of "Current Condition showing damage that did not exist prior".

[csnarpy]

yes but the if the tenants did sign the photo's as an agreement of the damage then that can go along way. Almost like signing a contract or affidavit imo.

[Boblobla]

I interprited this to mean that you took photos of the property ahead of time and had the tenants sign them saying that was the condition of the property. If that is the case this should suffice as an inspection report according to the above quoted clauses.

Edit: Upon further reading I am ######ed and confused all at the same time.

[photon]

If they're going to contest it after the fact though they could simply say they disagreed with the damage after thinking about it more.

Without a move-in walk through there's nothing that can be done. We had this once where we found out after we purchased the property that one of the tenants didn't have a movein.. cost us some money, so the next one like that we just made our offer a bit higher to compensate for any repairs that might be possible (not that we told the seller that).

[onetwo_threefour]

I'm not clear on why people are thinking that the photos represent a valid inspection report within the meaning of the act and regulation. If the statements prescribed under the regulation (see Delgar's post) aren't contained within the report, then there is every likelihood that the Courts would deem it not to be a proper inspection report. In many ways the RTA is though of as consumer protection legislation for the poor little tenant against the big bad landlord and technical deficiencies can easily kill a landlord's case.

It clearly says a 'landlord shall not make deductions from the security = deposit" unless the inspection requirements are met. In short, that means the landlord is obligated to return the deposit to the tenants , then sue for damages. Failing to do so is where you may run into fines, etc.

[onetwo_threefour]

Originally Posted by photon

If they're going to contest it after the fact though they could simply say they disagreed with the damage after thinking about it more.

Without a move-in walk through there's nothing that can be done. We had this once where we found out after we purchased the property that one of the tenants didn't have a movein.. cost us some money, so the next one like that we just made our offer a bit higher to compensate for any repairs that might be possible (not that we told the seller that).

Wouldn't you make your offer lower??

[photon]

Lol yes you are right. I wrote about a paragraph explaining to you why until it dawned on me.

[onetwo_threefour]

Originally Posted by photon

Lol yes you are right. I wrote about a paragraph explaining to you why until it dawned on me.

So, did you actually make your offer lower or higher?!?

[photon]

Now I'm going to have to go check!

[HelloHockeyFans]

So it sounds like you never did a checklist when they FIRST MOVED IN.

But rather, you walked around the house with them two years after, took pictures and got them to sign and agree that those pictures represented the state of the house at that moment.

Problem is, you don't have anything to compare these pictures to.

So if they were to counter and say, well those pictures he took look exactly as they were when we first moved in two years ago... you better have proof, signed by them that that isn't the case... otherwise you're out of luck pal.

Always, always do the move-in inspection and the move-out inspection. I actually do pictures as well because I find writing descriptions a little sketchy. I do a brief description, reference it to a labelled photo and get the tenants to sign.

The importance is having a baseline to compare the final condition to, and having photo evidence is extra insurance.

[bigtmac19]

Even if you have to give them back their damage deposit, can't you do small claims? I'm sure it's a hassle, but I don't think it costs you very much to file the papers.
A small filing fee and filling out some papers may get you at least something back.

[BBQorMILDEW]

Originally Posted by HelloHockeyFans

So it sounds like you never did a checklist when they FIRST MOVED IN.

But rather, you walked around the house with them two years after, took pictures and got them to sign and agree that those pictures represented the state of the house at that moment.

Problem is, you don't have anything to compare these pictures to.

So if they were to counter and say, well those pictures he took look exactly as they were when we first moved in two years ago... you better have proof, signed by them that that isn't the case... otherwise you're out of luck pal.

Always, always do the move-in inspection and the move-out inspection. I actually do pictures as well because I find writing descriptions a little sketchy. I do a brief description, reference it to a labelled photo and get the tenants to sign.

The importance is having a baseline to compare the final condition to, and having photo evidence is extra insurance.

I actually did an initial walk through, but i decided that i would take the pictures at the end of their tenure. I made a mistake when i took 10 days to hand over the pictures when I was supposed to have it done in 7 days.

[BBQorMILDEW]

Originally Posted by bigtmac19

Even if you have to give them back their damage deposit, can't you do small claims? I'm sure it's a hassle, but I don't think it costs you very much to file the papers.
A small filing fee and filling out some papers may get you at least something back.

I have thought about that but in this circumstance i just don't see this guy budging. I won't be paid no matter what the verdict.

[Boblobla]

Originally Posted by BBQorMILDEW

I have thought about that but in this circumstance i just don't see this guy budging. I won't be paid no matter what the verdict.

How did he pay the damage deposit and did you give him a receipt?

[Dion]

Originally Posted by BBQorMILDEW

I have thought about that but in this circumstance i just don't see this guy budging. I won't be paid no matter what the verdict.

Then force him to take you to small claims court. If he's found in the wrong you stil have his money

[Kjesse]

Originally Posted by Dion

Then force him to take you to small claims court. If he's found in the wrong you stil have his money

That's an attractive option if the damage was particularly notable, though he runs a lot of risk doing that, especially if the authorities decide to pursue the issue. You can be fined up to $5K for holding the deposit (see section 60 of the Residential Tenancies Act).

If he were charged you can bet the judge would make sure it wasn't a profitable situation for the landlord having kept the deposit.