Dispute with your former landlord? Here's how to use small claims court to get back your security deposit.
We receive a lot of inquiries for help with landlord/tenant issues. One of the most common problem involves the return of the security deposit at the end of the lease. The following is a summary of how to resolve this issue on your own, without a lawyer, using South Dakota small claims court. If you live in another state, the process might be similar.
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A landlord is not allowed to withhold your security deposit without a good reason, and it can't withhold any money to repair "normal wear and tear." In addition, the landlord must send you the deposit or a written explanation of the withheld amounts within a certain time limit.....and if it doesn't, it forfeits the right to withhold any money for any reason. One of the best ways to guard against later problems is to take photographs of your apartment when you move out, and walk through it with a friend, neighbor, or family member who can help you later by testifying about the condition of the rental property upon move-out.
According to the statute on this issue (SDCL 43-32-24), within 2 weeks of receiving the tenant's mailing address the landlord is required to either return the security deposit, or, send a written explanation about what amounts are being withheld and why. The amounts withheld can only be for legitimate amounts: either unpaid rent or costs of repair, but with "ordinary wear and tear excepted".
The tenant can then request an "itemized accounting" of the withheld funds, which must be provided within 45 days of the end of the lease term. In addition, the landlord can be required to pay $200 more as 'punitive damages'. The best way to recover these funds, if necessary, is in small claims court. You don't need a lawyer, but I suggest you use the following procedure. I can't guarantee it will work, but it will allow you to have your day in court.
STEP 1. At the end of your lease (or as soon as you have finished reading this webpage), you should send the following letter via certified, U.S. Mail, Return-Receipt Requested (the one with the green postcards attached to the envelope):
I am requesting that you send my security deposit to me at the following address:
If you are withholding any portion of the deposit, please provide a written statement showing the specific reason for the withholding. In addition, I am requesting an itemized accounting of any deposit withheld.
STEP 2. WAIT FOR DEPOSIT/STATEMENT OF WITHHOLDING. When you get the green postcard back that shows the landlord received your letter, wait 14 days from the date that your landlord signed for the letter (plus a few more for mailing time). If the landlord has not sent you the deposit or the letter that gives "a written statement showing the specific reason for the withholding", then proceed to Step 4. If the landlord does send you that notice, proceed to Step 3. SAVE YOUR GREEN POSTCARD.
STEP 3. WAIT FOR ITEMIZED ACCOUNTING. The landlord is also required to send you an "itemized accounting of any deposit withheld". Note that sometimes, the landlord's first response will include this calculation of the amounts withheld, which means you can stop waiting and proceed to Step 4. If not, then wait the 45 days before moving on to Step 4.
STEP 4. GET THE FORMS. It is now time to gather the forms you'll need in order to file a small claims action. You need to file this claim in the county where your apartment or rental house was located. The forms to fill out may be found online. For Lincoln or Minnehaha County, click here. Or, you can go to the courthouse and get paper copies from the Clerk's Office. The Clerks and Deputy Clerks are very nice and helpful people. Treat them very nicely, and they will be sure to return the favor.
STEP 5. FILL OUT THE FORMS. The forms for each county might be slightly different: in some counties, you write your claim on a big manilla envelope that has printed boxes and lines. Others, you fill out a sheet of paper. Regardless of what the forms look like, I recommend that you type of a summary of your "claim" on a computer, using the format in Step 6. Fill out all of the other parts of the form, and when you get to the spot where it asks you to describe your claim in detail, write "See Attached". In any event, for model language to use, see Step 6.
STEP 6. DRAFT YOUR CLAIM. It doesn't need to be fancy or include any legalese. Don't download forms from the internet or copy anything from another lawsuit. Instead, speak plainly, and without argument, such as the following. Use only the sentences that apply to your case and delete the others:
- I was a tenant at this address:_____________________________, which is located in _________ County.
- My landlord was _________________.
- My landlord's business address is __________________________.
- For my lease, I paid a security deposit of $_______.
- I requested the return of the security deposit via a letter, which I am attaching.
- The landlord received my letter, and I am also attaching the Return Receipt postcard showing that my letter was signed for on this date: _______________.
- The landlord has failed to return my security deposit within 14 days of receiving my letter, as required by SDCL 43-32-24.
- The landlord has failed to provide me with "a written statement showing the specific reason for the withholding of the deposit or any portion thereof" within 14 days of receiving my letter, as required by SDCL 43-32-24.
- The landlord has failed to provide me with an "itemized accounting of any deposit withheld" within 45 days after the termination of the lease, as required by SDCL 43-32-24.
- The landlord has withheld more money from my security deposit than is "reasonably necessary" to cover unpaid rent or to restore the rental property "to their condition at the commencement of the tenancy, ordinary wear and tear excepted," as is required by SDCL 43-32-24.
- The landlord's actions are in bad faith, in violation of SDCL 43-32-24, and permit the imposition of punitive damages not to exceed $200.
- I am attaching copies of the following documents which are also relevant to this case (such as the written lease, letters from the landlord, photographs of the rental property, the green postcards, copies of canceled checks, etc....whatever you can use to help tell the story with documents and records, rather than testimony.)
STEP 7. FILE THE FORMS. If you still live here in South Dakota, go to the Clerk's office with a checkbook and tell them you need to file a small claims action. (You have to file in the county where the property was.) The Clerks will look over your documents and make sure you're not missing anything. Don't get mad if they want you to fix something before they file it...the judge who reviews your documents later wants things to be very specific and orderly, so that he or she can quickly figure out what your case is about. Having the forms all in order and uniform helps with this process. The filing fee is going to be roughly in the range of $20 to $40. If you win your small claims action, you will get this money back. If you've moved away, you'll have to file by mail, and you will need to call the Clerk's office to have them explain that mail-in process to you.
STEP 8. GET READY FOR THE COURT HEARING. Review all of your documents. If you have any witnesses, such as a friend or neighbor who helped you move out and saw the condition of your rental property, make sure they know about the hearing date. If the landlord files an 'answer' that disputes your claims, you will receive in the mail a brief notice of this from the Clerk. However, usually you will need to go to the Clerk's office and ask for a copy of their written statement. (Remember to bring money for copies....10 cents a page.) Also, keep in mind that the Clerk may reschedule your court hearing. If you want to confirm the date, call the Clerk's office and tell them you want to check on the hearing date and time for your small claims matter.
STEP 9. ATTEND THE COURT HEARING. You don't need to wear a suit. Small Claims Court is for the people, not their lawyers. Dress as you normally dress. Arrive early, and prepare to wait for a while....there will be a few other cases on the docket, and the others might go first. Don't be surprised if the judge tells you to go into the hallway with your landlord to try and work out a settlement. To prepare for that, plan ahead: before you get to the courthouse, write down the minimum amount you would accept in settlement to avoid the risk of a trial. And then stick to that number. If the landlord is unwiling to meet your number, head back in to the courtroom and let the judge do what judges do best: sort out conflicts and find a fair solution. Again, I can't guarantee the judge will side with you, but, in general, judges will do what is right, based on all of the facts.
If you're looking for information about filing a small claims case in Minnehaha or Lincoln Counties or maybe elsewhere in South Dakota, these links might be helpful.
Statewide: The State Court Administrator's office publishes a general brochure on small claims available at this link.
Local: The Second Judicial Circuit also publishes a local brochure on small claims available at this link.
Forms: Forms for use in the 2nd Judicial Circuit can be found here: Small Claims Forms.
You are welcome to fill out these forms and file them at the courthouse. The forms are also available at the courthouse if you do not have access to a printer. Note, these forms are used in Lincoln and Minnehaha Counties but other counties may use different forms. Please check with your local Clerk of Court's office if you have any questions. All civil cases, including small claims, also require a Civil Filing Statement. That form is available at this link.