Use Security Deposit in this Situation?

5 Replies

I have a situation where the boiler room pipe sprung a needle size hole, spraying a very small amount of water against drywall.   From the beginning of the lease, I have instructed the tenant to look at the boiler room once a week.  Check for smells, smoke, standing water, spraying water, anything out of the ordinary.

I show up at the unit and find out that the boiler room pipe is spraying water.  I call a plumber and get it fixed right away.  I asked the plumber how long its been like this and he responds saying looking at the black mold on the drywall, it has to be over a month.  Turns out small pin hole leak can be a lot of water over a month.  Makes sense.

I ask the tenant when they were last in the boiler room and they say 2 days ago.  They did not see the standing water or the straying water or the damaged drywall with black mold on it.  Obviously they were not in the boiler room 2 days ago or even 20 days ago.

Does this situation warrant me using part of their security deposit to fix the moldy drywall issue?

In my opinion 'no'. You can't expect your tenant to be the inspection/maintenance guy. It is unfortunate that this occurred. I would not blame the tenant, nor dock the security deposit. 

No, don't charge the tenant.  You can ask tenants to do that kind of thing but they usually won't. I agree with @Bjorn Ahlblad you need to get your maintenance person to that type of work.

I probably wouldn't charge the tenant for this. You can't prove when they were last in there or how old the leak is. Even if you instructed them to look in there once a week, that's not reasonable. Did you ask them to look in the attic, or at the roof of every closet once a month? It's nice if they do it, but it's an unreasonable expectation.

Second, you should never, ever use the security deposit while the tenant remains in the home. If you intend to charge them for something, charge them and try to collect payment from them. You want the security deposit in place because that provides security for the faithful performance of the lease. It's your leverage. If you spend it, that leverage goes away.

Your wording is a bit wishy washy, not that I am sure it matters.  You say "from the beginning of the lease, I have instructed the tenant to look...."

Was this a verbal instruction or something agreed to in the lease?  

If this is in the lease and you had the tenant initial this section you may have more of a chance.  A lot of leases will have sections outlining if a tenant doesn't report a maintenance issue, lets say a kitchen sink that leaks under the cabinet and onto the floor in front of the cabinet, they can be responsible for the damages caused for not reporting this leak.  

I use this example because it is the kitchen, a place the tenant would visit frequently and the kitchen sink is something they would use as well.  

Really no difference between the two other than the location and the possibility of noticing it.

So, what say you?  Was this instruction in the lease or just something said?  

This was verbally communicated several times to check once a week.  Plus text messages as a reminder through out two years.  This was not written in the lease.  Tenant did tell me they checked on it once a week.

@nathanG   Tenant is about to move out soon.  That is why I was looking at using the deposit.

@Scott I like your kitchen leak example...I guess location plays a factor.