Home » LAW » 2009 Taylor v Beaudry (Security Deposit)

2009 Taylor v Beaudry (Security Deposit)

Dear Appellate Court Judges,

 

Recently there was a case in the Appellate Court called Taylor v Beaudry 75 Mass.App.Ct. 411 (2009). It was returned back to Housing Court and I believe it is listed as 07-CV-209 there.

This is a case of first impression and the ramifications for all landlords in MA can be substantial.

It looks like there was a mistake made by the Appellate Court in interpreting MGL 186, 15B, subsection 6 (b) to mean that any violation listed in subsection 4 (iii) falls under subsection 6 (b) by default and therefore results in automatic forfeiture of the whole security deposit. The reason for this is because you are reading “in compliance with the provisions of this section” under MGL 186, sec 15B, subsection 6(b) to apply to the “itemized list of damages” and not to the “30-day” requirement only like it was intended by the Legislature. If the Legislature intended to list all violations from 4 (iii) under subsection 6, they would have done so. Besides, if they intended that kind of reading then instead of having 6 (b) in its current version, the legislature could have said “fails to furnish to the tenant the itemized list of damages, if any, in compliance with the provisions of this section” because the 30-day requirement is already incorporated in “this section”.

Sec 6(b) only applies to the 30-day requirement not to anything else. It says that the landlord cannot keep the security deposit if he fails to furnish to the tenant within thirty days after the termination of the occupancy the itemized list of damages, if any, in compliance with the provisions of this section THAT IT SHOULD BE FURNISHED WITHIN 30 DAYS (my clarification in CAPS)!

Not having it signed by the pains and penalties of perjury is NOT a reason to triple the whole security deposit and add attorney fees provided that the accounting of the landlord was more or less correct and even if it wasn’t correct then only the amount by which the tenants were overcharged can be tripled. However, under your erroneous interpretation in Taylor v Beaudry it looks like you want the deposit to be tripled in cases where there is no specific language to signify that the itemization was signed “under the pains and penalties of perjury”. That is abusive and it was not only NOT the intention of the Legislature but it serves no other purpose other than to run the honest landlord into the ground financially.

First I will insert the actual language from the statute (I am only inserting the relevant portions of MGL, 186, 15B).

MGL 186, 15B (subsections 3, 4, 6, and 7):

“(3) (a) Any security deposit received by such lessor shall be held in a separate, interest-bearing account in a bank, located within the commonwealth under such terms as will place such deposit beyond the claim of creditors of the lessor, including a foreclosing mortgagee or trustee in bankruptcy, and as will provide for its transfer to a subsequent owner of said property. A receipt shall be given to the tenant within thirty days after such deposit is received by the lessor which receipt shall indicate the name and location of the bank in which the security deposits has been deposited and the amount and account number of said deposit. Failure to comply with this paragraph shall entitle the tenant to immediate return of the security deposit.

(4) The lessor shall, within thirty days after the termination of occupancy under a tenancy-at-will or the end of the tenancy as specified in a valid written lease agreement, return to the tenant the security deposit or any balance thereof; provided, however, that the lessor may deduct from such security deposit for the following:

(i) any unpaid rent or water charges which have not been validly withheld or deducted pursuant to any general or special law

(ii) any unpaid increase in real estate taxes which the tenant is obligated to pay pursuant to a tax escalation clause which conforms to the requirements of section fifteen C; and

(iii) a reasonable amount necessary to repair any damage caused to the dwelling unit by the tenant or any person under the tenant’s control or on the premises with the tenant’s consent, reasonable wear and tear excluded. In the case of such damage, the lessor shall provide to the tenant within such thirty days an itemized list of damages, sworn to by the lessor or his agent under pains and penalties of perjury, itemizing in precise detail the nature of the damage and of the repairs necessary to correct such damage, and written evidence, such as estimates, bills, invoices or receipts, indicating the actual or estimated cost thereof. No amount shall be deducted from the security deposit for any damage to the dwelling unit which was listed in the separate written statement of the present condition of the premises which was required to be given to the tenant prior to the execution of the lease or creation of the tenancy pursuant to clause (c) of subsection (2) or any damages listed in any separate list submitted by the tenant and signed by the lessor or his agent pursuant to said clause (c), unless the lessor subsequently repaired or caused to be repaired said damage and can prove that the renewed damage was unrelated to the prior damage and was caused by the tenant or by any person under the tenant’s control or on the premises with the tenant’s consent. Nothing in this section shall limit the right of a landlord to recover from a tenant, who willfully or maliciously destroys or damages the real or personal property of said landlord, to the forfeiture of a security deposit, when the cost of repairing or replacing such property exceeds the amount of such security deposit.

No deduction may be made from the security deposit for any purpose other than those set forth in this section.

(6) The lessor shall forfeit his right to retain any portion of the security deposit for any reason, or, in any action by a tenant to recover a security deposit, to counterclaim for any damage to the premises if he:

(a) fails to deposit such funds in an account as required by subsection (3);

(b) fails to furnish to the tenant within thirty days after the termination of the occupancy the itemized list of damages, if any, in compliance with the provisions of this section;

(c) uses in any lease signed by the tenant any provision which conflicts with any provision of this section and attempts to enforce such provision or attempts to obtain from the tenant or prospective tenant a waiver of any provision of this section;

(d) fails to transfer such security deposit to his successor in interest or to otherwise comply with the provisions of subsection (5) after he has succeeded to an interest in residential real property; or,

(e) fails to return to the tenant the security deposit or balance thereof to which the tenant is entitled after deducting therefrom any sums in accordance with the provisions of this section, together with any interest thereon, within thirty days after termination of the tenancy.

(7) If the lessor or his agent fails to comply with clauses (a), (d), or (e) of subsection 6, the tenant shall be awarded damages in an amount equal to three times the amount of such security deposit or balance thereof to which the tenant is entitled plus interest at the rate of five per cent from the date when such payment became due, together with court cost and reasonable attorney’s fees.”

Here is the same law from above but better organized and simplified:

 

Level 1. (see subsection 4) Lose the right to keep the portion for damages that you actually deducted after you deducted per 4 (i) and 4 (ii)

1. Fail to comply fully with the requirements of 4 (iii) but admit your mistake and return the balance to the tenant within 30 days (see 4(iii))

 

Level 2 (see subsection 6) Lose the right to keep the whole security deposit for any reason including back rent and taxes if you:

1. Fail to give the itemized list within 30 days (see 6-b)

2. Try to enforce a lease clause waiving any of these rights that the tenant has under 15B (see 6-c)

3. Do not deposit the security deposit in a MA bank (see subsection 3)

4. Do not give receipt to the tenant within 30 days that contains the name, address of the bank, amount and account number (see subsection 3)

 

Level 3 (see subsection 7). Pay the tenant 3 times the whole security deposit if

1. Fail to have a statement of perjury saying that the itemized list was sworn under the pains and penalties of perjury (from 4 (iii) – only if you don’t return the amount you actually deducted for damages within 30-days, otherwise it is Level 2 according to Taylor v Beaudry but it should be Level 1 per the plain reading of the law)

2. Fail to provide the receipts, estimates, etc as required (from 4 (iii) – only if you don’t return the amount you actually deducted for damages within 30-days, otherwise it is Level 2 according to Taylor v. Beaudry but it should be Level 1 per the plain reading of the law)

3. Fail to provide a statement of condition (from 4 (iii) – only if you don’t return the amount you actually deducted for damages within 30-days, otherwise it is Level 2 according to Taylor v. Beaudry but it should be Level 1 per the plain reading of the law)

4. Attempt to charge the tenant for the same things listed on the statement of condition unless you can prove that you are charging them for things done by the tenant after the Statement of Condition. (from 4 (iii) – only if you don’t return the amount you actually deducted for damages within 30-days, otherwise it is Level 2 according to Taylor v. Beaudry but it should be Level 1 per the plain reading of the law)

5. Fail to deposit it in an escrow account (from 6-a)

6. Fail to transfer the security deposit in case of the old owner or fail to comply with subsection 5 in case of the new owner. (from 6-d)

7. Fail to comply with 4 (iii) and fail to return within 30 days the balance from 4 (iii), if any balance remains after deducting accordingly from 4 (i) and 4 (ii) (from 6-e)

 

What this recent case accomplishes because of this mistake in effect is that Level 1 is eliminated completely and 1,2,3 and 4 from Level 3 should be under Level 1 unless the landlord actually deducts, keeps and refuses to return within 30-days to the tenant the deductions for damages in violation of 4(iii) If the the landlord returns within 30-days the money that he deducted illegally for damages , then that was all the tenant is entitled to according to 4 (iii) and 6(e). It used to be that the landlord owed the tenant 3 times the security deposit only if he failed to return the actually withheld portion for damages within 30-days under 6 (e). But now because Taylor interprets any violation of 4 (iii) to be a violation of 6 (b) even if you return it within 30 days you lose your whole security deposit not just the portion for damages to which you were not entitled! That is clearly not what was intended by the Legislature!

Here is the problem language:

“Our analysis means that the case must be remanded for further proceedings in the Housing Court. Before concluding, however, we pause briefly to note two other issues that may arise upon further proceedings. First, the landlord was entitled to deduct damage repair costs from the security deposit only if he complied with G. L. c. 186, § 15B(4)(iii), as appearing in St. 1978, c. 553, § 2, [FN11] which requires the landlord to provide the tenant within . . . thirty days [after the tenancy’s termination] an itemized list of damages, sworn to . . . under pains and penalties of perjury, itemizing in precise detail the nature of the damage and of the repairs necessary to correct such damage, and written evidence, such as estimates, bills, invoices or receipts, indicating the actual or estimated cost thereof.” He did not do that and, consequently, was not entitled to retain any part of the deposit.”

What happens in cases where the tenant owed the landlord more money than the security deposit in back rent and there was also a request that the tenant pay for some damages but no statement of perjury or statement of condition was provided to the tenant (violation of MGL 186, 15, 4(iii))? The tenant demanded the return of “the balance thereof” or whatever was rightfully theirs and the landlord told the tenant that after deducting the back rent from the security deposit, the balance is zero so he never actually deducted, received or kept any amounts for damages. Does the landlord in this case owe the tenant 3 times the security deposit plus attorney fees? The answer to that question is “no” but according to your recent decision in Taylor v. Beaudry it’s “yes”. The language “was not entitled to retain any part of the deposit” needs a little better qualification. It’s too broad of a statement and it is incorrect because of that.

 

JOHN C. TAYLOR vs. J.P. BEAUDRY.

 

75 Mass. App. Ct. 411

 

February 9, 2009 – October 15, 2009

 

Essex County

 

Present: MCHUGH, COHEN, & GRAHAM, JJ.

 

Landlord and Tenant, Security deposit, Multiple damages.

 

In a civil action arising from a landlord’s failure to return a security deposit within thirty days after termination of a tenancy, the Housing Court judged erred in dismissing the tenant’s complaint, where the landlord’s return of the deposit prior to litigation, but beyond the clear deadline contained in G. L. c. 186, § 15B(6)(e), did not preclude application of the treble damages and attorney’s fees provisions of G. L. c. 186, § 15B(6)(7). [413-416]

 

Discussion of issues likely to arise on remand to the Housing Court of a civil action arising from a landlord’s failure timely to return a tenant’s security deposit. [416-418]

 

CIVIL ACTION commenced in the Northeast Division of the Housing Court Department on October 16, 2007.

 

Entry of dismissal was ordered by Timothy F. Sullivan, J.

 

John C. Taylor, pro se.

 

J.P. Beaudry, pro se.

 

MCHUGH, J. John C. Taylor (tenant) filed a complaint in the Northeast Division of the Housing Court Department to recover treble damages from his former landlord, J.P. Beaudry (landlord), for the landlord’s failure to return a security deposit within thirty days as required by G. L. c. 186, § 15B(4), (6)(e). A judge of the Housing Court dismissed the complaint on the authority of Castenholz v. Caira, 21 Mass. App. Ct. 758 (1986), and the tenant appeals. We vacate the judgment.

 

Background. The tenant rented an apartment at 40 Fairfield Street in Lowell beginning in mid-November, 2003, [Note 1] apparently

 

Page 412

 

on written leases from month to month. When the tenancy began, the tenant paid the landlord a security deposit of $1,375. The last lease expired on August 31, 2007, and the tenant claims to have vacated the premises that day. The landlord claims that the tenant did not vacate until the following day, but that dispute is irrelevant to the outcome of our analysis.

 

By mail postmarked October 1, 2007, the landlord sent to the tenant a check for $871.67, also dated October 1, together with an undated letter explaining that the check covered the security deposit plus accrued interest of $109.81, minus $613.14 for cleaning and repairs to the tenant’s apartment. The landlord did not sign the damage list under the pains and penalties of perjury, nor did he provide with the letter any evidence, other than his own assertions, of the estimated or actual cost of repairing the damage. See G. L. c. 186, § 15B(4)(iii).

 

Dissatisfied with the timing and the amount of the deposit return, the tenant filed a complaint on October 16, 2007 (see note 3, infra), claiming that the landlord had not returned the deposit within thirty days after the tenancy’s end as required by G. L. c. 186, § 15B(6)(e), and that, having failed to follow the procedures set out in c. 186, § 15B(4)(iii), the landlord was not entitled to make any deductions from the deposit. [Note 2] See G. L. c. 186, § 15B(6)(b). Accordingly, the tenant sought a judgment for three times the total amount of the deposit, plus interest, costs, and reasonable attorney’s fees, pursuant to c. 186, § 15B(7).

 

At some point shortly after receiving the complaint, the landlord returned to the tenant the balance of the security deposit. The record is not entirely clear when the return occurred, [Note 3] but even in the light most favorable to the landlord, the record is

 

Page 413

 

clear that he did not return the balance within thirty days following termination of the tenancy. After returning the balance, the landlord sought dismissal of the complaint under what he claimed was the authority of Castenholz v. Caira, 21 Mass. App. Ct. 758 (1986). A hearing followed after which the judge agreed with the landlord and ordered the complaint dismissed, later denying the tenant’s motion for reconsideration. The tenant appeals from the judgment of dismissal.

 

Discussion. In dismissing the tenant’s complaint, the judge relied on this court’s statement in Castenholz that when a landlord “acknowledges his error and returns the deposit, and the tenant is not forced to resort to litigation to vindicate his rights, the multiple damages and attorney’s fees provisions of [G. L. c. 186, § 15B(7),] have no application.” [Note 4] Id. at 763. That sentence does not reach as broadly as the landlord contends.

 

The tenant in Castenholz sued his former landlords, claiming that their failure to place his security deposit in a separate escrow account within thirty days of receipt violated G. L. c. 186, § 15B(3)(a). [Note 5] Under G. L. c. 186, § 15B(6)(a), [Note 6] the landlords’ violation of § 15B(3)(a) effected a forfeiture of their right to

 

Page 414

 

retain any part of the security deposit. In turn, § 15B(7) [Note 7] provided that failure to comply with § 15B(6)(a) entitled the tenant to recover three times the amount of the security deposit.

 

The issue the court addressed in Castenholz arose out of the loose fit between § 15B(6)(a) and § 15B(7). Section 15B(6)(a) simply says that a landlord forfeits the right to retain the security deposit if the landlord fails to deposit it as required by § 15B(3)(a). Section 15B(7) says that a landlord’s failure “to comply with” § 15B(6)(a) entitles the tenant to treble damages. The problem was that § 15B(6)(a), by stating no time by which the forfeited funds had to be returned to the tenant, thus established no means for determining whether the landlord’s “noncompliance” triggered the treble damages provision of § 15B(7). [Note 8]

 

To supply a mechanism for determining noncompliance, the Castenholz court construed § 15B(6)(a) as a provision containing two components. The first component was, quite obviously, the forfeiture provision. In the court’s words, “[s]ubsection (3)(a) establishes the duty to place the security deposit in an escrow account. Subsection (6)(a) declares a forfeiture of the landlord’s right to retain the security deposit if he has failed to comply with the specified duty imposed on him by subsection (3)(a).” Castenholz, 21 Mass. App. Ct. at 762. The second component focused on when the forfeiture became effective. There the court held that the tenant’s demand for return of the deposit was the triggering event and that a “violation of subsection (6)(a) occurs if the landlord fails to return the deposit when

 

Page 415

 

requested.” Ibid. Finally, the court held that the treble damage provision of § 15B(7) only came into play if the landlord violated § 15B(6)(a) by failing to respond to the tenant’s demand for return of the deposit, thereby forcing the tenant to “resort to litigation.” [Note 9] Id. at 763. [Note 10]

 

To be sure, the opinion in Castenholz could be read to suggest that treble damages under § 15B(7) are unavailable anytime a landlord responds to a tenant’s demand and returns a security deposit before “litigation.” But § 15B(7) covers three clauses of § 15B(6) that deal with conduct the Legislature considered “particularly reprehensible.” Hampshire Village Assocs. v. District Ct. of Hampshire, 381 Mass. 148 , 153, cert. denied sub nom. Ruhlander v. District Ct. of Hampshire, 449 U.S. 1062 (1980), quoting from Lindsey v. Normet, 405 U.S. 56, 78 (1972). The first is § 15B(6)(a), the clause discussed in Castenholz. The second is G. L. c. 186, § 15B(6)(d), which declares a forfeiture if the landlord “fails to transfer [the] security deposit to his successor in interest or to otherwise comply with the provisions of [G. L. c. 186, § 15B(5),] after he has succeeded to an interest in residential real property.” The third clause is § 15B(6)(e), the provision at issue here, which provides that a forfeiture occurs when the landlord “fails to return to the tenant the security deposit or balance thereof to which the tenant is entitled after deducting therefrom any sums in accordance with the provisions of this section, together with any interest thereon, within thirty days after

 

Page 416

 

termination of the tenancy” (emphasis added). While smooth application of § 15B(7) to § 15B(6)(d) likely requires the framework the court used in Castenholz, application of § 15B(7) to § 15B(6)(e) does not, for the latter clause contains, clearly and visibly, its own compliance deadline: thirty days after termination of the tenancy.

 

We think, then, that the Castenholz framework is inapplicable to a landlord’s failure to return the tenant’s security deposit within the specified thirty days. The statutory obligation to return the deposit is clear, as is the time within which the deposit must be returned. Equally unambiguous are the consequences of failing to comply with that deadline. No interpretive gloss is necessary for a smooth and certain application of the statutory principles.

 

Our analysis means that the case must be remanded for further proceedings in the Housing Court. Before concluding, however, we pause briefly to note two other issues that may arise upon further proceedings. First, the landlord was entitled to deduct damage repair costs from the security deposit only if he complied with G. L. c. 186, § 15B(4)(iii), as appearing in St. 1978, c. 553, § 2, [Note 11] which requires the landlord to provide the tenant

 

“within . . . thirty days [after the tenancy’s termination] an itemized list of damages, sworn to . . . under pains and penalties of perjury, itemizing in precise detail the nature of the damage and of the repairs necessary to correct such damage, and written evidence, such as estimates, bills, invoices or receipts, indicating the actual or estimated cost thereof.”

 

He did not do that [Note 12] and, consequently, was not entitled to retain any part of the deposit. See, e.g., Mellor v. Berman, 390 Mass. 275 , 276 n.4 (1983) (“The purpose of requiring specific itemization is to ensure ‘that landlords do not make spurious and unfounded deductions for damage’ “), quoting from McGrath v. Mishara, 386 Mass. 74 , 80 (1982). Second, the statute provides that the security deposit must be

 

Page 417

 

returned within thirty days unless the landlord makes a valid deduction or has some other statutorily permissible reason for delay or partial return. [Note 13] See G. L. c. 186, § 15B(4). [Note 14] In a case like this one which involves claimed property damage, failure to return the security deposit, less any amounts that § 15B(4)(iii) permits the landlord to retain, within that period subjects the landlord to “damages in an amount equal to three times the amount of such security deposit or balance thereof to which the tenant is entitled,” plus interest from the date payment was due, and court costs and attorney’s fees. [Note 15]

 

No appellate court has expressly construed the phrase “balance thereof to which the tenant is entitled.” Several constructions are possible. One is that the “balance” to be trebled is the difference between the amount the landlord actually returned to the tenant before the judgment or rightfully retained and the amount the landlord should have returned. See M.J. Realty Trust II v. Dinnocenzo, 2005 Mass. App. Div. 35 , 36, 38, S.C., 67 Mass. App. Ct. 1107 (2006). Another is that the balance to be trebled is the difference between the amount returned within thirty days and the total that should have been returned. Yet a third is that the balance calculus comes into play only when the landlord has the right to withhold some part of the security deposit, but is mistaken as to how much and timely returns the rest. In that case, the balance to be trebled would be the difference between the amount properly withheld and the amount actually withheld. If, however, the landlord has no right to retain any part of the deposit, then the amount to be trebled under this approach would be the entire amount of the deposit, and the amount actually

 

Page 418

 

returned would be deducted from the trebled amount. See Carter v. Seto, 2005 Mass. App. Div. 62 , 63-65, 67, S.C., 66 Mass. App. Ct. 1114 (2006).

 

The briefs the parties filed in this appeal do not discuss the manner in which the relevant phrase should be interpreted. Indeed, they do not raise the “balance” issue at all. We raise the issue on our own because there is more than a slight possibility that it will arise on remand. Having raised the issue, however, we are reluctant to decide it without any input from the parties or others, for it is an issue of first impression that may have broad ramifications. Accordingly, we invite the parties and the judge to address the issue when and if it arises on remand.

 

The judgment of the Housing Court dismissing the complaint is vacated, and the case is remanded for further proceedings consistent with this opinion.

 

So ordered.

 

FOOTNOTES

 

[Note 1] The lease is not part of the record, but it appears that Kimberly Cole Taylor was a cotenant. The landlord does not contest the tenant’s right to prosecute this action solely in his own name.

 

[Note 2] At oral argument, both parties acknowledged that the tenant sent the landlord a demand letter before filing the complaint. The letter was not made part of the record of the case. Although the landlord claimed here that he returned the balance of the deposit after receiving the letter and before the tenant filed the complaint, the record contains no evidence to support that claim, and the judge found otherwise.

 

[Note 3] The judge originally found that the tenant filed the complaint on October 7, 2007. The docket, prima facie evidence of the facts it recites, Commonwealth v. MacDonald, 435 Mass. 1005 , 1007 (2001), says that the complaint was filed on October 16, 2007, and the judge appears to have allowed the landlord’s postjudgment motion to amend the findings to reflect the October 16 filing date. The landlord’s answer, in which he says that the deposit had been returned in full, is dated November 16, 2007, but does not appear on the docket until November 19. The judge found that the landlord returned the balance of the security deposit “[i]n mid-October 2007, after receiving the complaint.”

 

[Note 4] Explaining, the court reasoned, “Any one of the violations of duty listed in [§ 15B(6)] will entitle the tenant to immediate return of his entire deposit on request, regardless of whether the violation was innocent or wilful. Mellor v. Berman, 390 Mass. [275, 281-283 (1983)]. If the landlord refuses to acknowledge his error and return the deposit, thus forcing the tenant to employ legal process to vindicate his rights, the landlord will be liable for treble damages, interest, costs, and attorney’s fees. The purpose of subsection (7) is not to pillory the landlord, but to make resort to litigation feasible for the tenants.” Castenholz, 21 Mass. App. Ct. at 762-763.

 

[Note 5] General Laws c. 186, § 15B(3)(a), as appearing in St. 1978, c. 553, § 2, provides that “[a]ny security deposit received by [a] lessor shall be held in a separate, interest-bearing account in a bank, located within the commonwealth under such terms as will place such deposit beyond the claim of creditors of the lessor, including a foreclosing mortgagee or trustee in bankruptcy, and as will provide for its transfer to a subsequent owner of said property. A receipt shall be given to the tenant within thirty days after such deposit is received by the lessor which receipt shall indicate the name and location of the bank in which the security deposit has been deposited and the amount and account number of said deposit. Failure to comply with this paragraph shall entitle the tenant to immediate return of the security deposit.”

 

[Note 6] General Laws c. 186, § 15B(6), as appearing in St. 1978, c. 553, § 2, states, in relevant part: “The lessor shall forfeit his right to retain any portion of the security deposit for any reason, or, in any action by a tenant to recover a security deposit, to counterclaim for any damage to the premises if he: (a) fails to deposit such funds in an account as required by subsection (3).”

 

[Note 7] General Laws c. 186, § 15B(7), as appearing in St. 1978, c. 553, § 2, provides that “[i]f the lessor or his agent fails to comply with clauses (a), (d), or (e) of subsection 6, the tenant shall be awarded damages in an amount equal to three times the amount of such security deposit or balance thereof to which the tenant is entitled plus interest at the rate of five percent from the date when such payment became due, together with court costs and reasonable attorney’s fees.”

 

[Note 8] Section 15B(3)(a) says that failure to place the security deposit in an escrow account within thirty days of receipt entitles the tenant to an “immediate” return of the deposit. As the court observed, though, § 15B(7) points at noncompliance with § 15B(6)(a), not § 15B(3)(a). Castenholz, 21 Mass. App. Ct. at 760, 762.

 

[Note 9] By “resort to litigation,” the court meant something more than merely filing a complaint. The opinion noted that the Housing Court judge’s findings did “not indicate whether the plaintiff sought a return of his deposit prior to bringing this action.” Castenholz, 21 Mass. App. Ct. at 764. Still, it concluded that the “commencement of the action itself . . . operate[d] as a demand.” Ibid. Because the judge made “no finding of a tender promptly thereafter” and the landlords held firm to the position that the tenant had to sue a new owner of the premises to recoup the deposit, this court found that the landlords violated § 15B(6)(a) and were liable for treble damages, interest, costs, and fees under § 15B(7). Ibid. “[W]here the landlord refuses to return the deposit on demand,” § 15B(7) makes “remedy by litigation financially feasible, and thus efficacious.” Id. at 763.

 

[Note 10] Since the opinion in Castenholz was issued over twenty years ago, the Legislature has amended § 15B three times without changing the language the court construed in its decision. See St. 1986, c. 557, § 164; St. 1992, c. 133, § 522; St. 2004, c. 417, § 1. See also Daher & Chopp, Landlord & Tenant Law § 14:1, at 49 (3d ed. Supp. 2009).

 

[Note 11] The landlord has not claimed he was entitled to make deductions under G. L. c. 186, § 15B(4)(i) or (ii).

 

[Note 12] Even if the landlord’s October 1 correspondence met the thirty-day deadline, it was unsworn and did not include the required written evidence.

 

[Note 13] The parties have not briefed the question whether a deposit is “returned” within thirty days if the landlord deposits in the mail within thirty days a personal, corporate, or other check covering the amount of the deposit. We express no view on that question.

 

[Note 14] Section 15B(4) instructs in part as follows: “The lessor shall, within thirty days after the termination of occupancy under a tenancy-at-will or the end of the tenancy as specified in a valid written lease agreement, return to the tenant the security deposit or any balance thereof; provided, however, that the lessor may deduct from such security deposit for the following: . . . .”

 

[Note 15] The tenant’s complaint additionally sought three times the amount of the interest that the landlord reported had accrued on the interest-bearing security deposit account (i.e., three times $109.81). It is not clear whether the tenant sought this trebling on the basis of § 15B(7) or some other statutory provision. A plain reading of § 15B(7), see note 7, supra, does not support such trebling.

 

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