Month to month tenant wants to use Sec deposit as last months rent (apartment, lease agreement)

[1nyc]

NYC apartment with a month to month tenant/roomate who was asked to vacate by the end of this month (with proper notice, ~45 days). She has not paid April rent and has said to use her security deposit as this months rent. My understanding is that a security deposit is not to be used as rent. Could someone point me to the appropriate NY law that suggests this?

My worry here is that using the sec deposit for rent will leave me on the hook for her last 2 months of utilities bills (outstanding) and any damages present now or during move out.

Thank you

[STT Resident]

Google. "NYC landlord tenant laws" for the definitive but I'm sure you'll find that you're absolutely correct. A security deposit cannot be used as last month's rent for all the reasons you stated. You probably have around 30 days after she quits to return her security deposit less any outstanding utility bills and documented, receipted damages. Tell her to cough up unless she wants to end up in Small Claims Court!

[NY Annie]

NYC landlord-tenant statutes are very specific where the security deposit is concerned. The funds must be kept seperately in an interest-bearing account. The landlord is permitted to keep 1% of the interest earned as administrative fee; with the rest being returned to the renter minus any expenses/damages which must be itemized.

And it is not permissible to use any part of the security deposit for rent.

[jackmccullough]

I don't know what the New York law says, but I can make a couple of observations:

1. Whatever you think of tenants, and I'm sure you've had varied experiences, tenants tend to be skeptical that they will ever get their security deposit back, and they have good reason for this. It is very, very common for landlords to screw tenants out of their deposits; they rely on the fact that it can be a lot of trouble to try to get it back, so on balance even if a few tenants do try to pursue them, they win. (Feel free to tell me that you, personally, would never do this, and it might even be true, but there is no particular reason for the tenant to take you at your word.)

2. This leads to a lot of tenants thinking it's safer to get the landlord to agree to accept the security deposit for the last month's rent than to have to fight to get it back after they move out.

3. Even if the law says the deposit is not a substitute for rent, I doubt that there's anything in the law that prohibits a landlord and tenant to agree to do this.

Good luck.

[STT Resident]

Originally Posted by jackmccullough

I don't know what the New York law says, but I can make a couple of observations:

1. Whatever you think of tenants, and I'm sure you've had varied experiences, tenants tend to be skeptical that they will ever get their security deposit back, and they have good reason for this. It is very, very common for landlords to screw tenants out of their deposits; they rely on the fact that it can be a lot of trouble to try to get it back, so on balance even if a few tenants do try to pursue them, they win. (Feel free to tell me that you, personally, would never do this, and it might even be true, but there is no particular reason for the tenant to take you at your word.)

2. This leads to a lot of tenants thinking it's safer to get the landlord to agree to accept the security deposit for the last month's rent than to have to fight to get it back after they move out.

3. Even if the law says the deposit is not a substitute for rent, I doubt that there's anything in the law that prohibits a landlord and tenant to agree to do this.

Good luck.

Your input is noted. However, since you have no knowledge of what NY laws say regarding landlord and tenants and probably have no knowledge of the prevailing landlord tenant laws in other states, your posit is pretty moot.

This forum is invaluable to many, both landlords and tenants, who have questions and/or disputes. This forum's participants regularly direct both landlords and tenants to familiarize themselves with the laws applicable to their particular state. They're pretty standard but do vary a little from state to state.

To comment directly to your points:

A lease agreement which requires first, last and security is a contractual agreement. A security deposit is exactly that. State regulations require that the security deposit be returned to the tenant upon quit and usually within 30 days, less documented repairs and receipts.

Of course a LL and tenant can agree to disagree and split the difference but when you say, "Even if the law says the deposit is not a substitute for rent, I doubt that there's anything in the law that prohibits a landlord and tenant to agree to do this," that not only sounds extremely combative but not much to to do with any meeting of the minds nor anything to be legally argued since both parties obviously agree. Ergo case closed. Agreement reached. Duh?

Many such cases don't reach court because an agreement is reached. Is that so hard to understand?

With all due respect, jackmccullough, I t'ink you full a lotta hot watah, m'son!

[jackmccullough]

Originally Posted by STT Resident

Your input is noted. However, since you have no knowledge of what NY laws say regarding landlord and tenants and probably have no knowledge of the prevailing landlord tenant laws in other states, your posit is pretty moot.

This forum is invaluable to many, both landlords and tenants, who have questions and/or disputes. This forum's participants regularly direct both landlords and tenants to familiarize themselves with the laws applicable to their particular state. They're pretty standard but do vary a little from state to state.!

Thank you so much for enlightening this poor ignorant guy who has represented tenants in two different states for over thirty years. I really never would have guessed that a landlord-tenant agreement is a contract, or that many aspects of landlord-tenant law, such as the proper disposition of security deposits, is governed by law, which may vary by state.

Your point is particularly well taken in light of your insight in your own post as to the amount of time the landlord "probably" has to return the deposit. It might have been a good idea to mention that you do not, in fact, have the information the OP was looking for.

[mathjak107]

security deposits in ny can only be used for damages to the apartment . they can not be used as rent or taken by the landlord for money the landlord thinks may be owed .

a tenant in court will get their deposit back and you have to counter sue for anything you think your owed non apartment damage related.

[STT Resident]

mathjak: the thread is a year old.

[zz4guy]

Is she named in the lease? If not you are on the hook for everything due to the landlord. If she is on the lease then the day she is late on rent have your landlord serve and eviction notice and/or file a claim for the missing rent.

[CptnRn]

Originally Posted by mathjak107

security deposits in ny can only be used for damages to the apartment . they can not be used as rent or taken by the landlord for money the landlord thinks may be owed .

a tenant in court will get their deposit back and you have to counter sue for anything you think your owed non apartment damage related.

That is not true, it says right here in the NY Tenant's Rights Guide:

Tenant Rights, Laws and Protections: New York - HUD
A landlord may use the security deposit as a reimbursement for the reasonable cost of repairs beyond normal wear and tear, if the
tenant damages the apartment, or a reimbursement for any
unpaid rent.