The above-captioned case having come before the Commission on Landlord-Tenant Affairs for Montgomery County, Maryland ("the Commission"), pursuant to Sections 29-14A, 29-38, and 29-40 of the Montgomery County Code 1994, as amended, and the Commission having considered the testimony and evidence of record, it is, therefore, this 31st day of July 1997, found, determined and ordered, as follows:

On September 11, 1995, William and Karen Markley (" the Complainants"), former tenants at 25108 Applecross Terrace, Damascus, Maryland ("the Property"), filed a formal complaint with the Division of Consumer Affairs. The Complainants alleged that William McGovern ("the Respondent"), owner of the Property: (1) assessed unjust damages against their security deposit after the termination of their tenancy, in violation of Section 8-203(g)(1) of the Real Property Article, Annotated Code of Maryland ("State Code"); (2) failed to send them an itemized list of damages within thirty (30) days after the termination of their tenancy, by first class mail, in violation of Section 8-203(h)(1) and (2) of the State Code; and, (3) failed to return their security deposit, plus accrued interest, within forty-five (45) days after the termination of the tenancy, in violation of Section 8-203 (f)(1), and (g)(1) of the State Code.

After determining that the matter was not susceptible to conciliation, the Director of the Division of Consumer Affairs duly referred the above-named case to the Commission for review. On May 25, 1996, the Commission determined to hold a Public Hearing, which commenced on January 22, 1997, and concluded on that date. The Commission extended the time period within which it would decide this matter pursuant to Section 7.1 of Appendix L,"Regulations on Commission on Landlord-Tenant Affairs" of Chapter 29 of the Code, and hereby decides as follows:

Based on the testimony and evidence of record, the Commission makes the following findings:

1. The Complainants were not present at the hearing on January 22, 1997, however, they were represented by their attorney, Robert Hur. No objection was made by Respondents to the fact that the Complainants were not present but instead presented evidence through their attorney.

2. On July 1, 1992, the Complainants and the Respondent signed and entered into a one (1) year lease agreement ("Lease") for the rental of the Property. The Lease commenced on July 1, 1992, and expired on June 30, 1994. After the expiration of the initial lease term, the Complainants remained as tenants in the Property on a month-to-month basis until June 30, 1994.

3. On July 1, 1992, the Complainants paid the Respondent a security deposit in the amount of $1,100.00. $200.00 of the security deposit was defined in the Lease as a non-refundable pet deposit.

4. On April 27, 1995, the Complainants issued the Respondent a verbal notice of their intention to quit and vacate the Property by the end of May, 31, 1995. The Respondent testified at the hearing that he did not receive any notice to vacate from Complainants. He submitted into evidence a letter, dated May 10, 1995 (Respondents' Exhibit #2), expressing to the Complainants his desire to conduct a final walk-through inspection of the Property. The letter also requested that the Complainants notify him of an acceptable date for the inspection.

5. Regarding the final walkthrough inspection of the Property, the return of the entrance door keys and the changing of the locks, the Complainants had previously introduced into the case record (at pages 30 of Commission's Exhibit #1), a handwritten statement asserting that they made an appointment with the Respondent to conduct a final walkthrough inspection of the Property for 12:00 noon on May 27, 1995. The statement further asserts that they waited until 3:00 P.M. for the Respondent, who never showed up. Complainants' statement also asserts that, based on Respondent's failure to keep the appointment and the fact that they were moving to the State of Tennessee, they left one set of keys in the Property and mailed the other set to the Respondent by registered mail on May 30, 1995.

6. The Respondent testified that the Complainants failed to respond to his May 10th request for a final inspection and therefore, he was the one who scheduled the final walkthrough inspection of the Property for May 28, 1995. He further testified that when he arrived at the Property on that date, the original front door locks had been changed by Complainants and therefore, he was unable to gain entry. He further testified that he had to call a locksmith, at a cost of $95.00, to have the locks changed, and once he gained entry he found the keys that had been left by the Complainants. In support of his testimony, Respondent introduced into evidence at the hearing a paid receipt from Country Locksmith, in the amount of $95.00, dated May 29, 1995. (see Respondent's Exhibit #3a).

7. The Respondent testified that on June 10, 1995, he sent written notice to Complainants at their new address in Tennessee, advising them that their security deposit was being withheld for damages (see page 26 of Commission's Exhibit #1), and he provided them with a list of estimated costs to repair those damages, in the total amount of $1,035.00, itemized as follows:

Locksmith's bill                        $                               110.00

Replace front door lock set                                       125.00

Repair rear door lock set                                            65.00

Install sliding door lock set                                          45.00

Replace shrubbery/trim shrubbery                             120.00

Replace master bedroom faucet set/repair leak          225.00

Caulk bathroom fixtures                                             60.00

Replaced damaged kitchen floor                               285.00

Total                                                                    $1,035.00

8. The itemized list of damages issued by the Respondent did not credit the Complainants for any interest accrued by their security deposit.

9. The Respondent also testified that the Complainants contacted him on June 24, 1995, regarding the disposition of their security deposit, and that he again sent the above-referenced list of damages to them on June 25, 1995. (See page 27 of Commission's Exhibit #1).

10. At page 29 of Commission's Exhibit #1, is a handwritten statement from the Complainants in which they assert that they did not receive the itemized list of damages from the Respondent until August 29, 1995. The Complainants provided as an attachment to thier complaint (at page 24 of Commission's Exhibit #1) an envelope with a postmark of August 29, 1995, which they claimed contained the itemized list of estimated damages.

11. The Respondent testified that he did not contact any contractors to obtain estimates for repairs to the Property rather, he simply gave his own estimates of what he thought the repairs would cost. The Respondent also testified he did not have the last six items on his summary of damages (at #7 above) completed until November 7, 1995.

12. The Respondent introduced into evidence a spread sheet of costs titled Damages Summary (see Respondent's Exhibit 3) which he claimed represented all of the costs he incurred to repair the Property, the type of repair made and the date the work was completed. The summary itemized fifteen (15) repairs, actual costs in the amount of $1,743.69 and estimated costs in the amount of $695.00.

13. The Complainants' Representative, Bob Hur, argued that there were discrepancies in the amounts which were on the original list of damages and the Respondent's Summary of Damages.

14. The actual cost incurred for the replacement of the front door locks was $95.00 and not $110.00 as stated on the itemized list.

15. The Respondent testified at the hearing that he paid his brother, Matthew McGovern, the sum of $300.00 to trim the shrubbery at the property which had overgrown, and to reconstruct and rebuild the front door of the dwelling unit which he testified the Complainants had damaged. The Respondent submitted a xerox copy of check (#2409) made payable to Matt McGovern, in the amount of $300.00 (see Respondent's Exhibit 3d). However, the Respondent was not able to demonstrate how he arrived at a breakdown cost for labor and repairs. The Complainants' attorney agrued through cross examination of the evidence that the subject check contained a notation in the memo section, "paint, etc.," and not shrubbery trimming and door repair.

16. The Respondent testified at the hearing that the faucet washers in the hallway bathroom and the master bedroom bathroom had worn out and the faucets were in disrepair. He further testified that there was water damage behind the bathroom wall in the master bedroom from a water leak. He testified that he attempted to make repairs to the bathroom wall himself, but it became necessary to hire a professional plumber, B. J. Harper Plumbing, Inc., to make the repair. He submitted into evidence (see Respondent's Exhibit 2) a bill in the amount of $625.78.

17. The Respondent testified that the Complainants failed to pay their final water bill, from the Washington Suburban Sanitary Commission (WSSC), in the amount of $48.96, and he submitted into evidence a copy of the final bill (see Respondent's Exhibit #3j.)

18. The Respondent submitted into evidence a photograph of the kitchen floor (see Respondent's Exhibit #6) which he claimed demonstrated that the floor was damaged by the Complainants during their tenancy.

19. The Respondent testified that he had only obtained two estimates to have the carpeting cleaned, de-ticked and de-fleaed but he did not have these services performed.

20. The Respondent testified that he had owned the Property for thirteen (13) years. He further testified that during the time the Property was rented he did not conduct regular inspections, he did not perform any regular maintenance and, he had made no repairs.

Accordingly, based upon a fair consideration of the testimony and evidence contained in the record, the Commission on Landlord-Tenant Affairs concludes:

1. Section 8-203(a) of the State Code defines a security deposit as, "...any payment of money, including payment of the last month's rent in advance of the time it is due, given to a landlord by a tenant in order to protect the landlord against nonpayment of rent or damage to the leased premises."  The $200.00 non-refundable pet deposit paid to the Respondent by the Complainants was to protect the Respondent against damage to the leased premises by the Complainants' pet(s) and therefore, it is part of the security deposit and the Respondent was required to handle and dispose of it in accordance with Sections 8-203 of the State Code.

2. Complainants' notice to vacate was not in writing as required by paragraph #34 of the lease agreement. However, the Commission finds that although the notice to vacate from the Complainants was oral, the Respondent did receive it at least thirty (30) days in advance of the time the Complainants vacated, and the Respondent acknowledged and accepted the notice and acted in accordance with that acceptance by attempting to schedule a final walkthrough inspection of the Property. Therefore, the Hearing Panel concludes that the Complainants' tenancy terminated as of May 31, 1995, and Complainants do not owe Respondent any rent beyond that date.

3. The Respondent presented by first-class mail, directed to the last known address of the Complainants, within thirty (30) days after the termination of their tenancy, a written list of the damages claimed against their security deposit, in compliance with his obligation under Section 8-203(h)(1) of the State Code. However, the itemized list of damages contained, in addition to costs actually incurred to repair damage beyond normal wear and tear: (a) estimates for repairs that were never made; (b) repairs that were the regular maintenance obligation of the Respondent and which cannot be passed on to the Complainants; and (c) damages that are normal wear and tear.

4. The Commission finds credible the Respondent?s testimony and evidence that the Complainants changed the front door lock to the Property during their tenancy, and as a result, Respondent incurred actual expense, in the amount of $95.00, to change the locks to gain re-entry after the termination of Complainants' tenancy. The cost to replace the door lock was beyond normal wear and tear, and the Respondent properly withheld that amount from the Complainants' security deposit.

5. The Commission finds that, pursuant to Paragraph 27 of the Lease, the Complainants had an obligation to pay all WSSC charges, and that they failed to pay their final WSSC water bill, in the amount of $48.96. Although this cost incurred was not included in the itemized list of damages issued by the Respondent, the Commission finds that the Complainants were obligated to pay it, and because they did not, the Respondent properly withheld that amount from their security deposit.

6. The Commission finds that all other charges made against the Complainants' security deposit were either repairs that were never made (carpet cleaning), repairs that were the regular maintenance obligation of the Respondent, or repairs that were not in excess of ordinary wear and tear, in violation of Sections 8-203(g)(1) and (h)(1) of the State Code. Therefore, with the exception of the lock change and water bill cited above, all other damages charged against the Complainants? security deposit are disallowed.

7. The Respondent failed to credit the Complainants with the interest accrued on their security deposit, which sum is $88.00, in violation of Section 8-203(f)(1) of the State Code.

8. Respondent caused a defective tenancy by the improper handling and disposition of the Complainants security deposit.

In view of the foregoing, the Commission on Landlord-Tenant Affairs hereby orders Respondent to pay Complainants $1,044.04, which sum represents the Complainants security deposit ($1,100.00), plus accrued interest ($88.00), less damages rightfully withheld ($143.96).

The foregoing was concurred in unanimously by Commissioners Devany, Myers and Weinberg.

Should the Commission determine that the Respondent has not, within fifteen (15) calendar days of receipt of this Decision and Order, made a bona fide effort to comply with the terms of this Decision and Order, it may refer the matter to the County Attorney for enforcement.

The parties are hereby notified that Section 29-44 of the Montgomery County

Code 1994, as amended, declares that failure to comply with this Decision and Order shall be punishable by a civil fine Class A violation as set forth in Section 1-19 of the Montgomery County Code 1994, as amended.

Any party aggrieved by the action of the Commission may file an administrative appeal to the Circuit Court of Montgomery County, Maryland, within thirty (30) days from the date of this Order, pursuant to the Maryland Rules governing administrative appeals.

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Wendy Weinberg, Panel Chair

Commission on Landlord-Tenant Affairs