Order Page 3 of 8
24-CV-01091 Kaylee Atwood v. Leland Hill, Jr. et al
withholding rent. The defendants have not met their burden to show they were entitled to withhold rent
due to a breach of the warranty of habitability.
Plaintiff seeks to recover late fees of $250 per day for each day the rent was late. In this case, the
lease indicates the late fee is to be applied for every day rent is late as well as for the occurrence that rent
was late. Both boxes are checked on the lease and are contradictory and that contradiction cannot be
resolved by reading the lease as a whole. “When two provisions of a contract conflict, and we are unable
to resolve this conflict when reading the contract as a whole, then the contract is ambiguous.” Beldock v.
VWSD, LLC, 2023 VT 35, ¶ 40. When a contract is ambiguous, the court “may look to limited extrinsic
evidence of circumstances surrounding the making of the agreement to see if this resolves the ambiguity.”
Id. at ¶ 40 (citations and quotations omitted). There was no testimony presented by the parties on this
contradiction and the court cannot resolve the ambiguity. “When an agreement is ambiguous, the parties’
intent becomes a question of fact.” Id. at ¶ 50. Based upon the evidence presented, the court cannot
conclude what the intent of the parties was regarding the late fee. It is the burden of the plaintiff to prove
her claim and she has failed to prove the late fee was to accrue daily. The plaintiff is not entitled to relief
on this claim.
In addition to damages for rent due, plaintiff seeks compensation for damage to the property that
occurred during the defendant’s tenancy. Plaintiff testified to multiple areas that were damage and
speculated about the cost of repairs. An owner of real property is competent to testify as to the value of
the property. 12 V.S.A. § 1604. An owner cannot testify about repair estimates they receive from third
parties as that would be inadmissible hearsay. State v. Morse, 2014 VT 84, ¶ 13. Although the plaintiff
testified about estimates to repair some of the damage, the court does not consider that testimony. The
testimony the court can consider is the amount of money the plaintiff had already paid to repair damage to
the property. This includes $100 for flea bombing, $50 for trash removal, and $2,000 for drywall repairs.
The court concludes these expenses were in response to damage to the property that went above and
beyond normal wear and tear and the plaintiff is entitled to recover these costs. See Mongeon Bay Properties,
LLC v. Mallets Bay Homeowner’s Ass’n, 2016 VT 64, ¶ 32 (landlords are not entitled to recover damages for
normal wear and tear). Plaintiff also seeks compensation for a $900 water bill. There was insufficient
evidence regarding when the bill was accrued and what caused it. Although plaintiff alleges the bill was
due to a spigot being left open, that conclusory statement is not enough for the court to conclude the
defendants caused the water bill. Plaintiff has proven she is entitled to damages in the amount of $2,150.
Plaintiff seeks compensation for alleged unauthorized painting conducted by the defendants.
There is nothing in the written lease that prohibits defendants from painting the walls of the property.
Plaintiff has not met her burden on this claim.
Plaintiff seeks damages for harassment, emotional distress and loss of usage of the property.
Plaintiff did not provide notice of these claims in her complaint, thus the court cannot grant relief on these
requests. Even if they had been properly noticed in the complaint, plaintiff did not provide evidence
regarding these claims at the hearing. Plaintiff has not met her burden on these claims.
In ejectment cases, “[i]f the court finds that the plaintiff is entitled to possession of the premises,
the plaintiff shall have judgment for possession and rents due, damages, and costs, and when a written
rental agreement so provides, the court may award reasonable attorney’s fees. 12 V.S.A. § 4854. Plaintiff
is entitled to possession of the property, thus is entitled to costs. The cost for filing a complaint in the
Civil Division is $295. 32 V.S.A. § 1431(b)(1). There was no evidence regarding the costs incurred by
plaintiff for service fees. Plaintiff is therefore entitled to $295 for the court costs.
Order Page 4 of 8
24-CV-01091 Kaylee Atwood v. Leland Hill, Jr. et al
In summary, plaintiff is entitled to $2,325 for unpaid rent, $2,150 for damages to the property, and
$295 for costs. The total amount of damages owed to the plaintiff is $4,770.
Defendants’ Claims
Defendants first seek double damages due to plaintiff’s failure to return their security deposit. This
claim is governed by the Residential Rental Agreements Act and specifically 9 V.S.A. § 4461(e), which
states:
If a landlord fails to return the security deposit with a statement within 14 days, the
landlord forfeits the right to withhold any portion of the security deposit. If the failure is
willful, the landlord shall be liable for double the amount wrongfully withheld, plus
reasonable attorney’s fees and costs.
The goal of the court in construing a statute is to implement the intent of the Legislature. Miller v. Miller,
2005 VT 89, ¶ 14. “If the intent of the Legislature is apparent on the face of the statute because the plain
language of the statute is clear and unambiguous, we implement the statute according to that plain
language.” Flint v. Dep’t. of Labor, 2017 VT 89, ¶ 5. Under Section 4461(e), if a landlord willfully withholds
a security deposit in violation of the statute, they shall be liable for double the amount wrongfully
withheld, plus reasonable attorney’s fees and costs. “[T]he imperative ‘shall’ generally means that the
provision is mandatory.” State v. Lohr, 2020 VT 41, ¶ 8. Thus, if the court finds that defendants willfully
withheld the security deposit in this case, the court is required to find the defendants liable for double the
amount wrongfully withheld and is required to find the defendants liable for reasonable attorney’s fees and
costs.
A landlord is held to strict compliance with Section 4461 and is explicitly required to “return the
security deposit along with a written statement itemizing any deductions to a tenant within 14 days.” 9
V.S.A. § 4461(c); In re Soon Kwon, 2011 VT 26, ¶ 14. The statute does not define the term willful as applied
to Section 4461. However, the Vermont Supreme Court has stated, “[t]he term ‘wilful’ though given
different definitions under different circumstances cannot well mean less than intentional and by design.”
In re Chase, 2009 VT 94, ¶ 26 (quoting State v. Burlington Drug Co., 84 Vt. 243, 252 (1911)). In other words,
willful “means an act done with intention of purpose, designed and voluntary.” Id. at ¶ 26 (quoting Wendell
v. Union Mut. Fire Ins. Co., 123 Vt. 294, 297 (1963).
In this case, the court finds credible the testimony of Mr. Hill that the defendants did not receive a
written statement itemizing any deductions to the security deposit within 14 days of the termination.
There was conflicting testimony to this, however the plaintiff did not submit a copy of the statement she
sent to the defendants. Furthermore, even accepting plaintiff’s testimony as true that a notice went out,
the plaintiff’s testimony was limited to the security deposit was not going to be returned because of
damages. Such a generic statement does not meet the requirement of an itemization of deductions. The
plaintiff has not strictly complied with the requirements of 9 V.S.A. § 4461(c) and the decision by the
plaintiff to withhold the security deposit was clearly willful. The defendants are entitled to damages in the
amount double the security deposit. Defendants are entitled to $2,100 on this claim.
Defendants seek $5,630 in damages due to plaintiff’s testimony in a separate matter. Defendants
have cited no authority for the court to grant this relief. Assuming the argument is that the plaintiff
perjured herself in that prior case, the defendants have presented no evidence of that alleged perjury. The
defendants are not entitled to relief on this claim.