If the Tenant can prove that the Landlord is wrongfully withholding the Security Deposit, suing the Landlord is a reasonable action. However, Small Claims Court is not for everyone or every situation. It may be very difficult for the Tenant to prove his/her case if the Landlord has a lot of proof on his/her side.
In deciding whether or not to sue, the Tenant may want to consider the following questions and determine how easy or hard it will be for him/her to prove the case:
1. Did you sign a Check-In Inventory List?
If the Landlord does not have a check-in inventory report, then s/he must prove that the condition of the unit upon moving out was different from when you moved in. The Landlord must prove that any damages to the apartment were caused by the Tenant and were not already there. This can be hard to do, however there are various ways s/he can prove this. The Landlord could try to find a witness who inspected or looked at the place just before the Tenant moved in. S/he could have receipts of a new paint job, new carpets or new appliances installed just before the Tenant moved on. S/he could have dated pictures of the apartment.
In any case, if the Tenant knows he/she did not sign a check-in inventory list, it will be on the Landlord to prove that the dwelling was damaged beyond normal wear and tear, which is difficult for most Landlords to do.
If the Landlord does have the check-in inspection signed by the Tenant and has given the Tenant an accounting of what damages were caused, the Tenant will have to prove that the apartment was left undamaged. This is often very difficult to do. The Tenant will have to come up with the witnesses or photos to prove that the place has no more damages than when he/she moved in. If the building is old and in poor condition, the Tenant could go to the county building department and get proof of how old the building is.
2. Did you get a letter from your Landlord within 14 days of moving out that stated why s/he kept the deposit?
If, within 14 days, the Landlord did not give the Tenant a complete list of what s/he spent the deposit on, then under the Hawai'i law, s/he is obligated to give the Tenant the full security deposit back. For instance, if the Landlord sent the accounting dated 21 days after the termination date, the judge may be likely to rule in the Tenant's favor. However, some judges have found that where the Landlord came close to following the law, they will not return the security deposit to the Tenant in full, even if the Landlord was late.
3. Does the Landlord claim you owe more money over and above your deposit for damages?
If the Tenant owes the Landlord any back rent or money for damages, it is probably not a good idea to sue the Landlord for deposit. If the Tenant does, the Landlord is likely to counter-sue. This means the Tenant may end up having to pay more money to the Landlord, in addition to not getting back the deposit. The court could rule that the Tenant could owe more for the damages the Tenant caused than the Security Deposit can cover. The Tenant will be responsible for paying the difference in addition to losing the deposit. If the Tenant lost any of the keys, he/she could be responsible for paying for the replacement of all locks, which could be quite expensive. If the judge rules that the Tenant owers back rent, the judge might require the Tenant to pay back the rent in addition to the security deposit.
4. Is it worth your time and money to get the deposit back?
Remember, the Small Claims Court resolves disputes about money. If the Tenant is angry with the Landlord, the court process may not make him/her less angry nor make the Landlord apologize. Also, by going to court, the Tenant may lose a day's wages, not to mention the time and effort spent on gathering evidence and preparing for court.
If Tenant is on welfare, s/he will have to report any income collected if the case is won and it will affect his/her benefits. At most, the Tenant can obtain reimbursement for the court costs such as filing fees and sheriff's fees.
Many times, if the Landlord and tenant both have proof, the argument becomes "your word against hers/his." In these instances, it is common for the judge to "split the difference." This means the judge will award half of the deposit to the landlord and half to the tenant. Finally, if the Tenant wins and obtain the judgment against the Landlord, the Tenant must still go through the sometimes complicated process of collecting the money from the Landlord.
Suing anyone is not an easy task. However, if the Tenant decide that it is an option, s/he should begin collecting evidence and organizing for court. Put together all copies of correspondence, dated photographs of the apartment, receipts for the security deposit payment, and find witnesses to prove the case. The more prepared for Court, the easier it will be.
Please refer to Legal Aid's brochure "Security Deposits - Filing and Representing Yourself in Small Claims Court" for more detailed information and instruction. You may access it on the link below.