A landlord asked us a question that comes up often: "My tenant gave the keys to an acquaintance in the building, not to me directly. I discover damages a week later. Can I withhold the security deposit?"
The situation is tricky. On one hand, you have a potentially damaged property and a security deposit that is precisely meant to cover such costs. On the other hand, handing the keys to a third party creates uncertainty about the exact date of return and the enforceability of your findings. An unjustified deduction can cost you dearly: late penalties, forced reimbursement, or even a court ruling against you.
The answer in 30 seconds
Yes, you can withhold the security deposit for damages, but only if you can prove that those damages are attributable to the tenant. Handing the keys to a third party does not remove this right, but it seriously complicates the burden of proof.
The starting point for the return deadline remains the actual handover of the keys, even if it goes through an intermediary. What changes is your ability to rely on a move-out inspection report made after the fact. Without a signed joint inventory of fixtures, or a report by a judicial officer, your photos taken several days after the key handover carry very little evidentiary weight.
Before considering a deduction, check whether you can still have a judicial officer draw up a report. That is your best chance to secure the process.
Unsure about the validity of your lease or the clauses governing the security deposit? Analyze your lease in a few minutes to spot weak points before they become disputes.
What the law says
Article 22 of the loi du 6 juillet 1989 strictly governs the return of the security deposit. The deadline depends on whether the move-out inventory matches the move-in inventory:
- 1 month if the move-out inventory matches the move-in inventory;
- 2 months if the move-out inventory does not match.
The deadline starts running "from the return of the keys by the tenant." The law does not specify that this return must be made directly to the landlord. A handover to a third party authorized by the landlord, or to a person designated by the landlord, can therefore constitute an effective return.
But be careful: the public service states that the tenant returns the keys "either in person, or by registered letter with return receipt requested." Handing the keys to an unauthorized third party, without a dated and signed receipt, gives you no certainty about the exact date. If the tenant disputes it, you will have to prove when the keys were actually returned.
As for deductions, the principle is clear: the landlord may deduct from the security deposit amounts corresponding to the tenant's breaches, "provided they are duly justified." The required supporting documents include, in particular:
- the move-in and move-out inventory reports;
- photos;
- a report by a judicial officer;
- invoices or quotes for work;
- a letter claiming unpaid rent that remained unanswered.
Without a joint move-out inventory report, case law generally holds that the landlord cannot attribute damages to the tenant. Handing the keys to a third party does not change this requirement: it even reinforces it, because the third party is not qualified to jointly assess the condition of the property.
Why this can be a problem
Handing the keys to a third party creates three practical difficulties.
1. Proving the date of handover. If the tenant gave the keys to a neighbor on July 15, but you only retrieve them on July 20, which date prevails? The tenant can argue that they returned the keys on the 15th, which starts the return deadline earlier. You can argue that you only came into possession of the keys on the 20th. Without a dated receipt, it is your word against theirs.
2. Enforceability of later findings. You discover damages on July 22, a week after the keys were handed to the third party. The tenant can perfectly respond: "It wasn't me, someone else had access to the property after I left." And they would be right from an evidentiary standpoint. Between the key handover to the third party and your inspection, the property could have been visited, opened, or even damaged by others.
3. Risk of late penalties. If you withhold the security deposit without solid justification, the tenant can contest it. In the event of a dispute, the judge may order you to return the withheld amount, plus late penalties. The law provides for a penalty of 10% of the monthly rent (excluding charges) for each month started when the security deposit is not returned within the deadline.
A concrete example: a landlord discovers mold stains and a damaged sink three weeks after the tenant handed the keys to an acquaintance. He withholds €800 from the security deposit. The tenant contests, proves that they returned the keys on the announced date, and that no move-out inventory was signed. The landlord is ordered to return the €800, plus late penalties. The deduction cost him more than the repairs.
Exceptions depending on the lease and the situation
Furnished or unfurnished lease. The rules for returning the security deposit are identical in principle: 1 month if the move-out inventory matches, 2 months otherwise. Handing the keys to a third party does not change these deadlines, but it complicates proving the departure date.
Mobility lease. The security deposit is prohibited in a mobility lease. If you collected a security deposit on a mobility lease, the question of deductions does not even arise: you must return the full amount, regardless of the condition of the property. Handing the keys to a third party changes nothing.
Shared accommodation with individual leases. Each tenant is responsible for their room and the common areas according to the standard rules. If one tenant hands their keys to a third party, the same evidentiary difficulties apply.
Property in a condominium. You may keep a provision from the security deposit until the annual statement of charges accounts, up to 20% of the security deposit amount. This provision is independent of deductions for damages. Handing the keys to a third party does not exempt you from justifying this provision with documents.
Checklist: what to do when the tenant handed the keys to a third party
- Retrieve the keys from the third party and note the exact date of retrieval.
- Ask the third party for a written statement indicating when and how the keys were handed to them.
- Contact the tenant in writing to confirm the date of key handover and ask for their new contact details.
- Check whether a move-out inventory was signed. If so, by whom and on what date?
- If no move-out inventory was done, mandate a judicial officer without delay to draw up a report.
- Take dated and time-stamped photos of the property as soon as you have access.
- Keep all supporting documents: quotes, invoices, photos, report, written exchanges with the tenant.
- Calculate the return deadline from the date of key handover most favorable to the tenant, to be safe.
Possible actions
1. Mandate a judicial officer. This is the most urgent action. The judicial officer can draw up a move-out inventory report that carries strong evidentiary weight, even in the tenant's absence. The costs are shared equally between landlord and tenant, but you will likely have to advance the full amount. Do this as soon as possible after retrieving the keys.
2. Write to the tenant. Send a registered letter with return receipt requested to record the date of key handover, the absence of a joint move-out inventory, and your intention to have the condition of the property assessed. This letter will serve as evidence in case of a dispute.
3. Justify any deduction. If you decide to withhold an amount, you must provide the tenant with the corresponding supporting documents: move-in inventory, judicial officer's report, quotes or invoices. A deduction without justification is an undue deduction.
4. Return within the deadlines. If you cannot justify a deduction, return the security deposit within the legal deadline. Better to return it and forgo a fragile deduction than to expose yourself to late penalties.
Wondering if your lease contains clauses that weaken your position in a dispute? Check your contract now to anticipate problems before they arise.
FAQ
Can the tenant hand the keys to a third party without my consent? The law does not expressly prohibit it, but the key handover must allow you to regain possession of the property. If the third party is not authorized by you, the handover is irregular and you can contest the return date. In practice, always require handover in person or by registered letter.
Can I refuse to retrieve the keys from a third party? Yes, you can require the tenant to return the keys to you directly or by a traceable method. If you accept the handover to a third party, you risk not being able to prove the exact date of return.
Do photos taken after the key handover have any value? They have indicative value, but not adversarial value. The tenant can challenge their probative force by arguing that the property was accessible to others after their departure. A report by a judicial officer is much stronger.
What is the deadline to mandate a judicial officer? There is no strict legal deadline, but the longer you wait, the less probative the report becomes. Ideally, do it within days of retrieving the keys, before any re-letting or intervention in the property.
What does a landlord risk by withholding the security deposit without justification? The tenant can refer the matter to the conciliation commission or the court. The judge may order the landlord to return the withheld amount, plus late penalties of 10% of the monthly rent (excluding charges) for each month started.
Sources
Legal information
The information presented on this page is provided for informational purposes and is based on the texts and sources available at the time of its publication or last update. Legislation, regulations, and case law may evolve at any time. The results and explanations offered by bail.immo do not constitute legal advice and do not replace the opinion of a lawyer or another competent legal professional.