71 Drew v. Burlington Housing Bd

7ermont Superior Court
Filed 08/25/25
Chittenden Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 25-CV-247
175 Main Street
Burlington VT 05402
802-863-3467
.vermontjudiciary.org

71 Drew LLC,
Appellant
On Appeal from Decision of
V. City of Burlington
Housing Board of Review
Burlington Housing Board of Review,
Appellee

DECISION ON APPEAL

Pursuant to Rule 74, Landlord 71 Drew LLC appeals a decision of the Burlington
Housing Board of Review regarding the return of a security deposit. The Board concluded that
Landlord improperly withheld $916.77 from the tenants. For the following reasons, the Board's
decision is AFFIRMED.

Background

Appellant 71 Drew LLC ("Landlord") is the owner of a rental unit, 71 Drew Street, #2, in
Burlington. Robert Rich is the registered agent of the company and manages the property.
Tenants Ben Fishbein and Rachel Buckner moved into the rental unit with a written lease that
commenced on September 1, 2022 at a monthly rent of $1,875 and a security deposit in the same
amount. Tenants vacated the apartment on August 31, 2024. On September 14, 2024, Landlord
sent a written statement to Tenants that itemized deductions of $1,577.25 from the security
deposit. Interest of $3.90 was credited to the deposit, and Landlord returned $301.65 of the
deposit to Tenants.

In seeking a review before Burlington Housing Board of Review, Tenants disputed the
deductions for damage to the hardwood floor, cleaning fees, painting, patching nail holes,
damage to window shades, and damage to a dining room window. Landlord argued that the
deductions should be allowed because they were all for damage beyond normal wear and tear.
The Board held a hearing on November 21, 2024 at which all parties testified.

The Board issued its decision on December 21, 2024. Based on the evidence and
testimony, the Board concluded that the deductions for damage to the window shades and dining
room window and for some of the wall painting were reasonable, but that the deductions for nail
holes, hardwood floor damage, cleaning, and some of the painting stemmed from normal wear
and tear and were consequently unreasonable and not allowed. The Board ordered that Tenants
were entitled to recover $916.77 of the principal amount of the security deposit improperly
withheld plus additional interest of $0.006 per day from September 15, 2024 until the date that
the amount improperly withheld is returned. On appeal, Landlord challenges the Board’s
conclusion only as the hardwood floor damage, nail holes, painting, and cleaning. 1 Landlord had
deducted $500 for the hardwood floors.

Legal Standard

Appeals from decisions of the Housing Board of Review under 24 V.S.A. § 5006 are
governed by V.R.C.P. 74. In re Soon Kwon, 2011 VT 26, ¶ 6, 189 Vt. 598. The court reviews the
decision of the Board “on the record” rather than by conducting a new hearing. Id. (citing State
Dep’t of Taxes v. Tri-State Indus. Laundries, Inc., 138 Vt. 292, 294-95 (1980)). Unless the court
determines that it must take evidence or appoint a referee for proper disposition of the matter, the
court reviews the record of the hearing and exhibits acted upon by the Board. See 24 V.S.A.
§ 5006(b); V.R.C.P. 74(d). “In such cases, the court’s task is solely to determine whether there
was ‘any reasonable basis for the [Board’s] finding[s].’” In re Soon Kwon, 2011 VT 26, ¶ 6, 189
Vt. 598 (quoting Tri-State Indus. Laundries, Inc., 138 Vt. at 294). The court does not “reweigh
the evidence or assess the credibility of witnesses” because that is the province of the Board as
the trier of fact. Sweet v. Pierre, 2018 VT 122, ¶ 13, 209 Vt. 1 (citing Mullin v. Phelps, 162 Vt.
250, 261 (1994)).

Analysis

“A security deposit is any advance, deposit, or prepaid rent, however named, which is
refundable to the tenant at the termination or expiration of the tenancy. The function of a
security deposit is to secure the performance of a tenant’s obligations to pay rent and to maintain
a dwelling unit.” 9 V.S.A. § 4461(a). A landlord “may retain all or a portion of [a] security
deposit for . . . damage to property of the landlord, unless the damage is the result of normal
wear and tear or the result of actions or events beyond the control of the tenant.” Id.
§ 4461(b)(2); see also Burlington Code of Ordinances § 18-120. “‘Normal wear and tear’ means
the deterioration that occurs, based upon the reasonable use for which the rental unit is intended,
without negligence, carelessness, accident, or abuse of the premises or equipment or chattels by
the tenant or members of his or her household or their invitees or guests.” 9 V.S.A. § 4451(5).

The Court has reviewed the record, including the recording of the hearing below. First,
there was evidence in the record that Tenants cleaned the apartment when moving out, following
Landlord’s checklist. The Board was well within its discretion to credit this evidence and
conclude that the 2.4 hours of cleaning done by Landlord – including windows, the oven
window, cobwebs, and light fixtures – constituted normal wear and tear. See, e.g., Camacho v.
Paduch, 78 N.Y.S.3d 905, 911 (City Ct. 2018) (cleaning dirty windows and ceiling fans is
normal wear and tear).

There was also photographic evidence of the nail holes in the record. Exs. P7, P8. In
certain cases, excessive nail holes might go beyond normal wear and tear. See, e.g., Prevo v.

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While Landlord discussed only the hardwood floor damage in his appellate and reply briefs,
he also identified the nail holes, painting, and cleaning as issues in his notice of appeal. Thus,
the Court addresses all of those issues.
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Evarts, 146 Vt. 216, 218 (1985). Here, however, the Board was well within its discretion as the
fact finder to examine that evidence and determine that it constituted normal wear and tear.

As to painting, the record similarly included photos of wall damage, including “some
marks and discoloration on some walls, as well as some nail holes and a patch mark.” Board
Dec. ¶ 10; Ex. P6, P9, P10, P11, P12. Again, the Board was well within its discretion to review
this evidence and conclude that a reasonable deduction for painting over wall damage beyond
normal wear and tear was $246.77, rather than the $375 sought by Landlord. See, e.g., James
Bohl, CPA, P.C. v. Poffenbarger, 100 N.Y.S.3d 609 (App. Div. 2018) ($2,500 for painting
constituted normal wear and tear).

With respect to the hardwood floors, a lease addendum between Landlord and Tenant
provides:

Care of Hardwood Floors:
Lessee shall exercise appropriate care of the hardwood floors in the
apartment by using felt pads under all furniture legs and supports
so as not to scratch the finish or damage the wood. Lessee will not
drag heavy objects across the floors, or otherwise carelessly use
the floors in a manner that will cause them damage.

Ex. D1. Another agreement titled “Proper Care/No Alteration Agreement” contains a similar
provision regarding proper care of the hardwood floors.” The evidence below was that Landlord
provided Tenants felt pads free of charge, and that Tenants promptly placed them under the legs
of their sofa at the beginning of their lease. In 2024, Landlord noticed that the hardwood floor
under the sofa had gouges. Tenants checked below the sofa, observed that the felt pads had worn
down, and promptly replaced them. Based on this evidence, the Board found and concluded that:

[Tenants] were very careful with respect to moving furniture and
used felt pads under the furniture to protect the floor. Knowing
that [Landlord] was concerned about the floors, [Tenants] were as
careful as possible with the floors. The Board concludes that
[Tenants] made reasonable use of the property. Additionally, the
floors had not been refinished since 2012. . . . Consequently, the
Board concludes that the deduction for the hardwood floor was not
reasonable as it was part of normal wear and tear.

Housing Board Dec. ¶ 17.

The record supports this conclusion. Tenants testified that they were very careful about
moving furniture and using felt pads under the furniture. The Board, as the finder of fact, had
discretion to credit this testimony. In other words, the Board found that the damage to the floors
was not caused by Tenants’ negligence or carelessness, but rather was the result of normal wear
and tear. See 9 V.S.A. § 4451(5). Moreover, sitting on a couch and occasionally moving it
around is a reasonable use of a residential property. Thus, it was not inappropriate for the Board
to conclude that hardwood floors may need maintenance from time to time. See, e.g., Wood v.

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Bosch, 213 N.Y.S.3d 842 (City Ct. 2022) (finding that “sanding and staining the floors” after a
10-year period of no maintenance was “not inconsistent with what would be required for normal
wear and tear”). Landlord suggests that Tenants should have periodically checked the felt pads
to ensure their viability, but points to no authority imposing such a duty. The two lease
provisions explicitly addressing proper care of the hardware required Tenants to place felt pads
under all furniture legs, but did not affirmatively require Tenants to subsequently check the felt
pads at certain intervals. There is no basis to disturb the Board’s ruling below.

Order

For the foregoing reasons, the decision of the Burlington Housing Board of Review is
AFFIRMED.

Electronically signed on August 25, 2025 at 2:33 PM pursuant to V.R.E.F. 9(d).

________________________________
Megan J. Shafritz
Superior Court Judge

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