How Do You Properly Assert a Claim for Damages? Some Thoughts for Northern Virginia Landlords

Drywall holes - a common repair issue for landlords.

I regularly receive phone calls about disputes involving the application of security deposits, often at a point where the parties are practically on the doorstep of the courthouse. Whether you are a landlord, a property manager, or a realtor, understanding how to properly assert a claim for damages is critical in order to both recover your repair costs and hopefully minimize the risk of subsequent litigation. If you have a rental property with considerable damages caused by a tenant, an experienced Northern Virginia landlord tenant lawyer can provide you with valuable guidance. 

Understand Virginia’s Legal Standard for Damages

Unfortunately, the process isn’t as simple as totaling up your repair costs and sending an invoice. You need to understand the law and how it applies to your case. The Virginia Residential Landlord and Tenant Act (VRLTA) allows you to apply the security deposit to damage to the property “less reasonable wear and tear.” That sounds simple enough, but can be difficult to apply in particular cases. 

What is Reasonable Wear and Tear?

 

One way to think about reasonable wear and tear is that those are damages that occur as the result of day-to-day living versus damage that is caused by misuse or obvious negligence. For example: 

Reasonable Wear and Tear	Recoverable Damages
Scuffs on the walls	Large holes and broken drywall
Scratches, scuffs on wood floors due to foot traffic	Severe damage to wood floors such as deep scratches or missing planks
Stove malfunctioning due to age	Smashed cooktop due to misuse

What About Depreciation? 

“Reasonable wear and tear” also arguably includes depreciation. Many judges will expect landlords to factor in the age of the component when asserting a claim for damages. Even if the damage was the direct result of your tenant’s misuse, they will take the position that you aren’t entitled to full replacement cost if you would need to replace the item in the next couple of years. 

Factoring depreciation into your damages claim may look like this: 

• The tenant spilled paint on the carpet and it now needs to be replaced at a cost of $3,0000.00. 

• The carpet was rated for 10 years and was five years old at the time the tenant took occupancy. 

One way to calculate depreciation would be as follows: 

• Cost of replacement (C) ÷ Useful life of the time (N) x Remaining life of item (L) = Damages

Let’s then apply this formula to our example with the carpet above: 

• $3,000.00 ÷ 10 = $300.00 (the annual depreciation cost of the carpet)

• $300 x 5 = $1,500.00 (your claim for damages)

Keep in mind that this formula is not “the law” - the law does not make any express reference to depreciation nor does it specify how depreciation should be calculated. There are different ways to factor in depreciation. 

💡Most judges will appreciate the fact that you at least accounted for depreciation instead of trying to charge your tenant full replacement cost. I once heard a judge say, “Landlords cannot renovate their rental properties on the backs of their tenants.” 

Of course, claiming the full replacement cost is sometimes appropriate. There are no hard-and-fast rules when it comes to calculating damages. An experienced Northern Virginia landlord tenant lawyer can assess your claim and help you determine which damages are recoverable. 

The Importance of Move-In and Move-Out Inspections

I often tell clients, “it’s not what you know, it’s what you can prove.” If you have to go to court, you will need to prove that the damages you are seeking at least occurred while your tenant occupied the property. The best way to prove your damages is to make a side-by-side comparison of thorough and detailed move-in and move-out inspection reports. 

In my experience, landlords are diligent about conducting the inspection, but are often forgetful when it comes to preparing the reports. A move-in inspection is likely required by your lease and is arguably required by Virginia law. Ultimately, it’s just good practice and can have tremendous impact if you have to make a claim for damages. 

Property management companies have their own forms that they use, which include a room-by-room itemization of the condition of the property upon move-in. The move-out inspection report is in a nearly identical format. If you are managing your property on your own, simply create a form on your computer that you can use. It should include details upon the condition of the following elements of each room: 

• Walls and paint

• Flooring

• Windows, blinds, curtains

• Lights, outlets, and other fixtures

• 
  

I also recommend that you have your tenant sign the move-in report in order to indicate that they agree that it accurately reflects the condition of the property. 

Applying the Security Deposit and Informing Your Tenant

The tenant has moved-out and you have discovered that there is a lot of repair work to be done. Assuming that your tenant was current on the rent, you do have the right to apply the security deposit to those damages that are not the result of normal wear and tear. 

💡You can require your tenant to pay a security deposit of no more than twice the amount of the monthly rent. In my experience, most landlords require a security deposit equal to one month’s rent. 

Under the VRLTA, you must inform your tenant of how you are using their security deposit within 45 days of the end of their tenancy. You must do this in writing and you must provide an itemization of the damages you are claiming. I recommend that you send a formal letter, but email is perfectly acceptable. It is not something that I would communicate over text message, however. 

💡“Willfully” failing to inform your tenant of how you applied their security deposit gives them a right to file a lawsuit seeking the return of their security deposit as well as their attorney’s fees and costs. 

If the damages exceed the amount of the security deposit and you will need to hire a contractor, you can get an additional 15 days to send the letter. You must first inform the tenant in writing within the 45 days. 

Why Virginia Landlords Should Work With a Lawyer

Asserting a claim for damages is not nearly as straightforward as it appears. Overreaching can spark an adversarial response that results in litigation. If you need help recovering damages from a former tenant, we can provide the guidance you need. Contact us today for a consultation and protect your rights as a landlord.