A tenant moves out and you walk through the property. The carpet is worn, there are marks on the walls, a cabinet door is damaged and the refrigerator has a broken shelf. Now comes the question that can make returning a security deposit complicated: Is it normal wear and tear, or is it damage?
Hawaii law makes that distinction important. Under HRS § 521-44, a housing provider may use a security deposit for certain damage caused by a tenant, but not for normal wear and tear. Hawaii law defines normal wear and tear as deterioration or depreciation in value caused by ordinary and reasonable use. In practical terms, a rental home is expected to age while someone lives there. Carpet gets worn in frequently traveled areas, paint fades and develops minor scuffs and fixtures and appliances eventually wear out. Those costs are generally part of owning and maintaining rental property, rather than something that can automatically be charged to the departing tenant.
Damage is different. A large hole punched in a wall is not the same as a few scuff marks. A carpet permanently stained or burned through tenant misuse is different from carpet that has simply become worn from years of ordinary foot traffic. A broken cabinet door may be damage if it resulted from misuse, while loose hinges on an older cabinet may simply reflect age and ordinary use.
Age Matters
There is another important piece of the equation that housing providers sometimes overlook. Even when something has been damaged, its age and existing condition matter when determining the actual loss.
Imagine that a tenant damages carpet shortly before moving out. The question should not simply be, “What does new carpet cost?” The better question is, “What was the value and remaining useful life of the carpet that was damaged?” If the carpet was already old and nearing the end of its useful life, replacing it with brand new carpet leaves the property with something more valuable than what existed before the damage occurred. The same principle should be considered with paint, appliances, flooring, blinds and other components of the home.
Hawaii's statute does not provide a depreciation schedule telling housing providers that carpet lasts a particular number of years or that paint must last a particular number of years, and that makes documentation especially important. Keep records showing when major items were installed or replaced, along with photographs of their condition at the beginning and end of each tenancy.
Start at Move In, Not Move Out
The best time to prepare for a security deposit decision is when the tenant moves in. Hawaii's Office of Consumer Protection recommends a written inventory documenting the condition and contents of the unit, including its cleanliness and any existing damage. Both parties should retain signed and dated copies and photographs make that documentation even stronger. If the carpet was already worn when the tenant arrived, your move in records should show it, but if it was new document that too.
At move out, compare the property to its condition when possession began. Ask whether the change resulted from ordinary use, whether there was actual damage, and whether the age and prior condition of the item affect the amount reasonably attributable to that damage. Remember that the security deposit is not intended to renovate the property between tenants. It is there to address the specific purposes permitted under Hawaii law. When deductions are appropriate, HRS § 521-44 requires the housing provider to provide an itemized list of deductions and supporting written evidence, such as receipts, estimates or invoices, within the applicable 14 day period.
A good rule of thumb is simple: Your tenant is responsible for damage they cause. While you (the housing provider) are responsible for the ordinary aging of your property. Being knowledgable about the difference, and having the records for proof, makes returning a security deposit much easier for everyone.
This article provides general educational information about Hawaii's Residential Landlord Tenant Code and is not legal advice. Housing providers with questions about a particular security deposit or damage claim should consult an attorney or the Hawaii Department of Commerce and Consumer Affairs Landlord Tenant Information Center.
