Burden of Proof on Landlord in Small Claims

[burnsea88]

I moved out of an apartment complex in Colorado a few months ago. I never received a statement describing the deductions taken out of my security deposit, however, I did receive a refund. The company that runs the complex claims they sent me a statement, but I know that I never got one. I would like to take them to small claims. Under Colorado Statutes 38-12-103 section 3b, it states that "In any court action brought by a tenant under this section, the landlord shall bear the burden of proving that his withholding of the security deposit or any portion of it was not wrongful." Is it not a wrongful withholding if I received no itemized statement of deductions? Also, is it not up to the landlord to prove that he sent me a statement? Or do they just have to prove that they sent me a refund?

 

[burnsea88]

The court fees are $55 for this claim in Colorado, I don't want to waste the money if I know that the landlord does not have to provide proof that he mailed a statement (ie certified mail).

 

[Zigner]

I moved out of an apartment complex in Colorado a few months ago. I never received a statement describing the deductions taken out of my security deposit, however, I did receive a refund. The company that runs the complex claims they sent me a statement, but I know that I never got one. I would like to take them to small claims. Under Colorado Statutes 38-12-103 section 3b, it states that "In any court action brought by a tenant under this section, the landlord shall bear the burden of proving that his withholding of the security deposit or any portion of it was not wrongful." Is it not a wrongful withholding if I received no itemized statement of deductions? Also, is it not up to the landlord to prove that he sent me a statement? Or do they just have to prove that they sent me a refund?

What happened when you asked for a copy of the statement? I am assuming (from the mere existence of this thread) that you know that the deductions themselves were valid and you simply want to argue on technicalities.

They will say that they included the statement with the check. They will testify that it is their normal business practice to do so. At that point, assuming their testimony is credible, the burden will shift to you to show that you didn't receive it. Since you received the check, it's reasonable to assume that you also received the statement.

With that said, you also have the problem that merely neglecting to send a statement does NOT change whether or not you damaged the unit or failed to pay rent, as required. Assuming they can prove that their deductions from your deposit were valid, then you will lose.

 

[FarmerJ]

I cannot imagine alot of landlords mailing a check with out a statement but there are landlords and tenants who just will not use certified mail or mail tracking of any kind as part of part of paper trails But do ask them for a copy of the statement if they ask why then tell them ` you didnt include it with the check` If they will not send you a copy then your free to choose to use small claims and ask for a penalty (if applicable) as well as wanting to know exactly what they charged you for. If you took exit photos to show the units condition and how nice and clean you left the unit then bring them to court with you.

 

[burnsea88]

I did wait until 60 days to pass (which is the legal time limit in Colorado for return of deposit) and then asked for a statement of deductions. I did receive one, but it was dated October 10th, which is well over 60 days past my lease termination. I also have an email conversation between me and the manager at the complex in which he admits that I should receive my full refund because he could not prove the statement was sent. However, when he sent the request for refund in to the company that owns the complex it was denied. I am going on a bit of a technicality here, but I know I never received a statement, only the check in an envelope. I guess my only real case would be if the landlord has to provide proof that he sent out a statement and not just a check.

 

[Zigner]

I did wait until 60 days to pass (which is the legal time limit in Colorado for return of deposit) and then asked for a statement of deductions. I did receive one, but it was dated October 10th, which is well over 60 days past my lease termination. I also have an email conversation between me and the manager at the complex in which he admits that I should receive my full refund because he could not prove the statement was sent. However, when he sent the request for refund in to the company that owns the complex it was denied. I am going on a bit of a technicality here, but I know I never received a statement, only the check in an envelope. I guess my only real case would be if the landlord has to provide proof that he sent out a statement and not just a check.

The problem is that you have a misconception of what "proof" is.

 

[justalayman]

The court fees are $55 for this claim in Colorado, I don't want to waste the money if I know that the landlord does not have to provide proof that he mailed a statement (ie certified mail).

I think you are misinterpreting the statute:

"In any court action brought by a tenant under this section, the landlord shall bear the burden of proving that his withholding of the security deposit or any portion of it was not wrongful."

In any court action. That means the LL would be allowed to provide proof of a valid claim to the deductions, in court, even if he has not previously provided such. Unless you can find a statement (such as in California law) that requires the LL provide a statement prior to suit to show how the deductions were claimed, I think you are fighting a losing battle.

to restate:

the statute requires the landlord to show proof of the validity of the retention. It does not require a LL provide proof he has sent you a statement explaining the deductions from your security deposit.

 

[burnsea88]

Is there any credible way I could prove that I only received a check and not the statement as well? I can't really see there being any way to prove that other than my word.

 

[burnsea88]

I think you are misinterpreting the statute:

"In any court action brought by a tenant under this section, the landlord shall bear the burden of proving that his withholding of the security deposit or any portion of it was not wrongful."

In any court action. That means the LL would be allowed to provide proof of a valid claim to the deductions, in court, even if he has not previously provided such. Unless you can find a statement (such as in California law) that requires the LL provide a statement prior to suit to show how the deductions were claimed, I think you are fighting a losing battle.

to restate:

the statute requires the landlord to show proof of the validity of the retention. It does not require a LL provide proof he has sent you a statement explaining the deductions from your security deposit.

The preceding section of the statute states: "The failure of a landlord to provide a written statement within the required time specified in subsection (1) of this section shall work a forfeiture of all his rights to withhold any portion of the security deposit under this section." Does this hold any ground here?

 

[burnsea88]

The problem is that you have a misconception of what "proof" is.

So you are saying the fact that the landlord did send a check is enough proof on his side regardless of whether or not a statement of deductions was included? Then it becomes my burden to prove I never received a statement?

 

[justalayman]

The preceding section of the statute states: "The failure of a landlord to provide a written statement within the required time specified in subsection (1) of this section shall work a forfeiture of all his rights to withhold any portion of the security deposit under this section." Does this hold any ground here?

so now you want to toss in additional info?




but even with that, it says he forfeits his rights to withhold. It doesn't say he forfeits his rights to make a claim or recover. It's starting to sound a lot like California's law.

so, with what you have presented;

he cannot withhold

he apparently is given a right to prove the withholding in court

there may be something saying what happens if he does withhold beyond the allotted time. I haven't looked.

 

[Zigner]

So you are saying the fact that the landlord did send a check is enough proof on his side regardless of whether or not a statement of deductions was included? Then it becomes my burden to prove I never received a statement?

What I am saying is that the testimony as to the normal practices of the business and the specific adherence to that procedure may be enough to satisfy the burden of proof.

I am also saying that the mere fact that the LL didn't send a statement may not get you off the hook for damages you may have caused or for payment you may owe.

 

[burnsea88]

so now you want to toss in additional info?
.

Sorry should have included all the relevant sections of the statute. They are below

Colorado Statute 38-12-103

1.) In the event that actual cause exists for retaining any portion of the security deposit, the landlord shall provide the tenant with a written statement listing the exact reasons for the retention of any portion of the security deposit. When the statement is delivered, it shall be accompanied by payment of the difference between any sum deposited and the amount retained. The landlord is deemed to have complied with this section by mailing said statement and any payment required to the last known address of the tenant. Nothing in this section shall preclude the landlord from retaining the security deposit for nonpayment of rent, abandonment of the premises, or nonpayment of utility charges, repair work, or cleaning contracted for by the tenant.

2.) The failure of a landlord to provide a written statement within the required time specified in subsection (1) of this section shall work a forfeiture of all his rights to withhold any portion of the security deposit under this section.

3.) b.) In any court action brought by a tenant under this section, the landlord shall bear the burden of proving that his withholding of the security deposit or any portion of it was not wrongful.

 

[burnsea88]

I am also saying that the mere fact that the LL didn't send a statement may not get you off the hook for damages you may have caused or for payment you may owe.

I should have included more information from the statute. The first section states: " In the event that actual cause exists for retaining any portion of the security deposit, the landlord shall provide the tenant with a written statement listing the exact reasons for the retention of any portion of the security deposit. When the statement is delivered, it shall be accompanied by payment of the difference between any sum deposited and the amount retained. The landlord is deemed to have complied with this section by mailing said statement and any payment required to the last known address of the tenant." Does this change anything?

 

[latigo]

I moved out of an apartment complex in Colorado a few months ago. I never received a statement describing the deductions taken out of my security deposit, however, I did receive a refund. The company that runs the complex claims they sent me a statement, but I know that I never got one. I would like to take them to small claims. Under Colorado Statutes 38-12-103 section 3b, it states that "In any court action brought by a tenant under this section, the landlord shall bear the burden of proving that his withholding of the security deposit or any portion of it was not wrongful." Is it not a wrongful withholding if I received no itemized statement of deductions? Also, is it not up to the landlord to prove that he sent me a statement? Or do they just have to prove that they sent me a refund?

Clearly, under Colorado law retaining any portion of the security deposit that is not done in compliance with subsection (1) of the statute would be unlawful and thus wrongful. And such failure works as a forfeiture of the landlord rights in that respect.

The problem as I see it is in the added adjective "willful" which first appears in the penalty provisions of subsection (3)(a).

The willful retention of a security deposit in violation of this section shall render a landlord liable for treble the amount . . . .

For some reason the legislature added willful to wrongful and unlawful, a word which generally signifies a sense of intentional, deliberate wrongdoing as opposed to inadvertent.

And here I don't see a court ruling that the landlord purposefully violated the statute rendering it subject to the penalties of (3)(a), when it did in fact remit a portion of the deposit. Plus testimony that it sent the statement.

Moreover, it may come to pass that the burden of proving willfulness on the part of the landlord will fall on your shoulders. And in my opinion most likely.