Can Security Deposit be used to pay for unlawful detainer?

General Landlording & Rental Properties
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Can Security Deposit be used to pay for unlawful detainer?

Ken D.
Minneapolis, MN · Member since 2012 · 21 posts · 3 votes

1 tenant out of a group of 3 refused to pay her last portion of the last month's rent. I tried explaining to her why this wasn't acceptable and she still refused. Her roomates weren't willing to cover her portion of the rent. Ultimately, I'll end up taking the rent + late fee out of the security deposit, but I also wanted to place an unlawful detainer on the 1 tenant who refused to pay her portion -- I was wondering whether the cost of the unlawful detainer can also be deduced from the security deposit?

Our lease has language such as:

"Resident agrees that any payment received will first be applied to any fees owed under this lease, including but not limited to, late, legal, court, unlawful detainer and/or damage, prior to paying rent for any month."

"When Resident moves out, the Deposit will be returned by Owner with interest as specified by Minnesota statutes provided Resident has: A.) Given proper written notice and has performed all the terms of this Lease G.) Paid all outstanding amounts due to Owner and utility companies"

"If Owner brings any legal action against the Reisdent, Resident must pay Owner's actual attorneys' fees, court costs, and related expenses even if rent is paid after a legal action is started"

I would think that last paragraph is explicit enough to allow security deposit to be used for unlawful detainer, but I wanted to check.

Thanks,

-Christina

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Marcia Maynard
Investor · Vancouver, WA · Member since 2013 · 3k+ posts · 4k+ votes
12y

@Jerry W. Actually, Unlawful Detainer is not the same as Eviction. Eviction refers to removing a person from a property by legal process. Unlawful Detainer refers to the person staying (detaining) in the property beyond the time they were legally allowed to do so (unlawful). So, in Washington State I can evict a person with a legal notice to pay rent or quit, or another lawful notice to terminate the tenancy. If they leave within the time frame specified by the notice, they are not unlawfully detaining (remaining in the property). If they remain (detain) then I can file in court that they are unlawfully detaining, if a judge upholds my claim, and they continue to stay, we can proceed to have them removed with the help of the sheriff.

@Ken D. So, to answer the OP's question, first we need to know did all three tenants move out? If they did and no one was detaining, then you could not file unlawful detainer. If any one of the three tenants remained in the property past the date of termination, and you served a legal notice for them to vacate by a certain date and they did not, then you could file a lawsuit for unlawful detainer (by the way, this term is not used in all states) and the legitimate legal fees you incur could be deducted from the security deposit.

No legal advice :-)

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  • Richard Gaston
    Investor · Lakewood, WA · Member since 2014 · 119 posts · 8 votes
    12y

    I am not sure about Unlawful Detainer, but I do know Landlord/Tenent Laws which is about the same in all States, unless a State/City/Township/County has stricter Laws. But under the Landlord Tenent Laws if a Security Deposit has been paid and if a Tenent has not paid his or her rent then the Security Deposit can be voided and be used to vacate the tenent under the Law including any and all legal actions, Court Costs can be added on as well as Attorney Fees if it stipulates as such in the Lease Agreement. I am not sure if that answers your question about Unlawful Detainer but I am sure you can ask a Real Estate Attorney who is familar with Landlord Laws.

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  • Jerry W.Pro Member
    Moderator
    Investor · Thermopolis, WY · Member since 2012 · 4k+ posts · 4k+ votes
    12y

    Actually Landlord tenant law varies GREATLY from state to state. There is no real federal counterpart for each state to copy so the differences can be huge. Unlawful detainer is just another way of saying eviction. Normally your lease or rental agreement specifies your agreement with a renter. State and sometimes local law over rides your written agreement in most cases. It may pay to consult with an attorney who specializes in landlord/tenant law. You can also look up statutes up online in all states I believe, so you might be able to read the laws on eviction and renting. In Wyoming its only a 10 minute read it is probably longer in your state. @Richard Gaston is correct that towns or counties can make their own laws on renting and you need to know what they are. That is where a local attorney can help. Good Luck

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  • Richard Gaston
    Investor · Lakewood, WA · Member since 2014 · 119 posts · 8 votes
    12y

    @Jerry W yes you're right it does vary from State to State, when I was in class to get my RE License (oh about a hundred years or so lol actually way less then that lol) one of the subjects I had to learn was Property Management. The General Outline of the Landlord/Tenent Laws are the same which was written in California (of all places lol). Each State does have its own laws as well which are a bit stronger then the General outline of the Landlord/Tenent Laws and any case usally the Landlord wins 9 times out of 10 unless there is a very good strong reason why the tenent refuse to pay their rent and if its a just cause reason there should be documented complaints and such and the rent would be wisely put in Escrow (in case the tenent lost and had to pay the rent lol). But from the question I don't see a just cause reason so even I would ask a Real Estate Attorney what to do to rectify the sitiuation including eviction.

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  • Ned CareyPro Member
    Moderator
    Investor · Baltimore, MD · Member since 2008 · 17k+ posts · 13k+ votes
    12y

    Who is the lease with? Who paid the deposit? Who was the receipt for the deposit made out to? Are your tenants "Jointly and severally" liable for the rent? These would be key questions to know before answering your question.

    My guess is unless you evict them all, you cannot use any of the deposit for anything. If they are jointly and severally liable for the rent move to evict them all. They will figure a way to work it out.

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  • Marcia Maynard
    Investor · Vancouver, WA · Member since 2013 · 3k+ posts · 4k+ votes
    12y

    @Jerry W. Actually, Unlawful Detainer is not the same as Eviction. Eviction refers to removing a person from a property by legal process. Unlawful Detainer refers to the person staying (detaining) in the property beyond the time they were legally allowed to do so (unlawful). So, in Washington State I can evict a person with a legal notice to pay rent or quit, or another lawful notice to terminate the tenancy. If they leave within the time frame specified by the notice, they are not unlawfully detaining (remaining in the property). If they remain (detain) then I can file in court that they are unlawfully detaining, if a judge upholds my claim, and they continue to stay, we can proceed to have them removed with the help of the sheriff.

    @Ken D. So, to answer the OP's question, first we need to know did all three tenants move out? If they did and no one was detaining, then you could not file unlawful detainer. If any one of the three tenants remained in the property past the date of termination, and you served a legal notice for them to vacate by a certain date and they did not, then you could file a lawsuit for unlawful detainer (by the way, this term is not used in all states) and the legitimate legal fees you incur could be deducted from the security deposit.

    No legal advice :-)

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  • Richard Gaston
    Investor · Lakewood, WA · Member since 2014 · 119 posts · 8 votes
    12y

    @Marcia Maynard I think its a bit more complex then that seeing that there are 3 people involved but only one refuses to pay their portion of the rent. I do not think Ken Durden can evict the one without evicting all of them unless Ken has 3 seperate leases on the 3 tenents, from what I read it looks like there is one lease for all 3 tenents which means if I am understanding this correctly (and if I am not someone correct me) that the full rent is not being paid. Then under Washington Law (yes I live in Washington too lol) he has to give ALL of them a 3 day Pay or Quit notice, if the rent don't get paid in full within that 3 days, Under the Law here he then gives a 10 day notice to vacate after that then he goes to court to have them evicted unless there is just cause why the rent is not paid, again there has to be documentation on Just Cause and the rent should be placed in Escrow if there is.

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  • Marcia Maynard
    Investor · Vancouver, WA · Member since 2013 · 3k+ posts · 4k+ votes
    12y

    @Richard Gaston Of course the legal notices that begin the eviction process must be served to all three, if they are named as tenants in the lease as jointly and severably liable. The legal notices would state all of their names and "et al" or "and all other tenants in possession of the premises" to cover any others who might be there but are not on the lease.

    My point was that unlawful detainer would not be filed until someone had unlawfully detained. It wasn't clear to me from the OP's post if it was just that they stiffed him on last month's rent and vacated, or if someone had remained.

    The final report on return of deposits does not occur until the landlord has regained possession of the property. So I thought the OP must have regained possession of the property already. But then he said he "wanted to place an unlawful detainer on the one tenant...", which he could not do if they were all gone.

    Now, if one tenant remained and the other two were gone, the landlord could file the lawsuit for unlawful detainer. But as @Ned Carey pointed out, whether it is on the one person or all depends on who is named in the lease and how the lease is worded. It would need to be done on everyone named in the lease, et al.

    No legal advice.

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  • Richard Gaston
    Investor · Lakewood, WA · Member since 2014 · 119 posts · 8 votes
    12y

    @Marcia Maynard I agree wholeheartedly :) I just saw that the one tenent of the three refused to pay their portion of the rent so I assumed that 2 of the tenents paid the rent but not the third roommate, which is still not the full rent. He wants to get rid of the third tenent that is refusing to pay the rent, like it was said unless he has a seperate lease or rental agreement with all 3 tenents, if one don't pay then it effects all 3 not just one ;) like you just said... :)...sorry one thing I hate is working Graveyard Shifts, my time schedule is all messed up but today I am off but still its all messed up, hard to stay awake sometimes and other times I am suprise I make sense even to myself lol so if I come across like a blithering idiot I apologize in advance. :)

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  • Jerry W.Pro Member
    Moderator
    Investor · Thermopolis, WY · Member since 2012 · 4k+ posts · 4k+ votes
    12y

    @Marcia Maynard I do not know the legal status in Minnesota, but i can tell you in Wyoming unlawful entry and detainer and eviction mean exactly the same thing. The difference is unlawful entry and detainer means a legal tenant is holding over either past term or not able to remain longer because they have broken the term of the rental agreement and failed to leave when asked to do so according to their rental agreement. The only way it becomes different is if the person in the house claims ownership. When this happens in Wyoming it must move to higher level court as a County or circuit court does not have jurisdiction to decide title to real property.

    While unlawful detainer means the person is holding over eviction is the process you use to remove an unlawful detainer, so the effect is the same. Under Wyoming law it is not called an eviction in the statute is is called forcible entry and detainer. It all really means the same thing. It is the process to remove someone who entered under color of title but does not remain under color of title..

    It is my understanding that in many states you can illegally enter and claim to be a tenant simply by living there as short as one day. That does not happen in Wyoming. If you have not entered lawfully you can be arrested for criminal trespass. So in some states it might not matter if you entered illegally. So unlawful detainer might have a slightly different meaning, it has none in my state.

    When I hear stories about how in Detroit someone moves in overnight into a rehabbed property and you must go through a 6 month eviction I find it incredulous. In my state they would be arrested. Unlawful entry is a crime, it can never confer legal status on you unless it is a claim to title by adverse possession.

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  • Jerry W.Pro Member
    Moderator
    Investor · Thermopolis, WY · Member since 2012 · 4k+ posts · 4k+ votes
    12y

    @Marcia Maynard as to your explanation to Richard that you must serve all 3 tenants is not the case in my state and I cannot say whether it is the case in Minnesota where the question was poised. It depends upon the rental agreement most of the time. If you have a single house and had 3 folks under a single common lease you might be able to evict all 3, but many leases, especially in college areas they actually break the payments and evictions up separately but keep damages joint. Those can be a huge headache. For example a landlord can have a common lease where everyone is jointly and severally liable, or he can rent out each bedroom separately and call the common bathrooms, kitchen etc an area that all can use. That is why it is so important to have a local attorney to sort those things out. The law varies a lot from state to state and even from town to town. So advising on serving papers and who gets served and the process may be right on or absolutely wrong. @Ken D. needs to get a professional to review his rental agreement and advise him if he has any questions after reading the laws of his state.

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  • Marcia Maynard
    Investor · Vancouver, WA · Member since 2013 · 3k+ posts · 4k+ votes
    12y

    @Richard Gaston In reference to what would be done in Washington State... if you serve a 3-day Notice to Pay Rent or Quit (or Vacate), that is sufficient to start the eviction process. If the tenant doesn't respond by paying rent or vacating the property, the next step will be to file suit for Unlawful Detainer and the eviction process continues to it's natural end of the owner regaining possession of the unit. You do not file a 10-day notice. The 10-day notice is used for other types of lease violations, and is often referred to as the 10-day Notice to Conform.

    If you have a situation where you want the tenant to pay rent and you also want to terminate the rental agreement whether or not they pay rent, you can serve both the 3-day Notice to Pay Rent or Quit and the 20-day Notice to Vacate (which is a no-cause notice) simultaneously. If they don't pay the rent and don't quit, you can move to Unlawful Detainer on the 4th day. If they do pay, then they can remain until the date stated in the 20-day notice. If they stay beyond that date, then you can move to Unlawful Detainer at that time.

    I know this, because I have done such with the assistance of my attorney who specializes in Landlord-Tenant law in Washington State.

    No legal advice. :-)

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  • Richard Gaston
    Investor · Lakewood, WA · Member since 2014 · 119 posts · 8 votes
    12y

    @Jerry W. I think if I am correct that it is called Squatters Rights, Ok I think I misspelled that, I think in each State its different and even I am not to familiar with it, I do know if a person Squats on a piece of unown property for a certain length of time they own it free and clear, but I maybe wrong on that.

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  • Jerry W.Pro Member
    Moderator
    Investor · Thermopolis, WY · Member since 2012 · 4k+ posts · 4k+ votes
    12y

    @Ken D. sorry about hijacking your thread bud. We have gotten sidetracked on the laws in our own states which probably do not help you much. I have found the information to intrigueing to say the least. My state only one single 72 hour notice, and no 10 day or 20 day notices. It was only 5 or 6 years ago the Wyoming adopted a rule about having running water as a requirement for a rental, and even then you can contract so its not needed. I hope someone on here from Minnesota can help you out. Good luck

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  • Richard Gaston
    Investor · Lakewood, WA · Member since 2014 · 119 posts · 8 votes
    12y

    @Marcia Maynard See? That is why I said get the advise from an attorney lol...Even I don't know all the in's and out's of the Laws. I only know what has been done here in the Apartment complex we live in, in Lakewood. The Apartment Manager on another Tenent did a 3 Day Pay or Quit notice, then gave them a 10 Day Notice to Vacate then through Lakewood Court did an eviction, after that the Sheriff came out and put their stuff on the streets, after the time expired that Lakewood Court gave them to move out that is lol...

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  • Marcia Maynard
    Investor · Vancouver, WA · Member since 2013 · 3k+ posts · 4k+ votes
    12y

    @Jerry W. You are absolutely right that the OP needs to consult resources specific to location of the rental property. In Washington State, if it goes to court, the suit filed is for Unlawful Detainer. Eviction is the process. Too many missing pieces to adequately address OP's question. The OP will need to sort it out.

    1Reply
  • Richard Gaston
    Investor · Lakewood, WA · Member since 2014 · 119 posts · 8 votes
    12y

    @Ken D. I agree with Jerry it was intriguing to say the least but sorry about hijacking your Thread, not sure if we help you. But I would highly suggest that you contact an Attorney that is very familiar with Landlord/Tenent Laws in your area, as you can see from our discussion all Laws are different regarding Landlord/Tenent Laws :)

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  • Andrea M.
    Real Estate Investor · Hampton, VA · Member since 2012 · 562 posts · 109 votes
    12y

    I don't think you can use security deposit or any portion, to file your unlawful detainer, however the court cost can be included in your petition for reimbursement.

    Check your states landlord/tenant act/law, this may be illegal even though its stated in your lease.

    1Reply
  • Ken D.
    OP
    Minneapolis, MN · Member since 2012 · 21 posts · 3 votes
    12y

    Sorry I wasn't clearer.

    Yes, all three tenants have moved out on-time.

    Yes, all three tenants are named jointly and severally liable on the single lease.

    I'm apparently very confused about unlawful detainer (UD), but from talking to other tenants who have applied to us who have UDs on their records I had gotten the impression that a UD was a "really bad mark" a landlord put on a Tenant's record for misbehavior, but mostly related to not paying rent. We had one applicant say a UD was placed on her record for failing to pay $80.

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  • Richard Gaston
    Investor · Lakewood, WA · Member since 2014 · 119 posts · 8 votes
    12y

    ok, I am going out on a limb here, but I am confused. Where is the unlawful Detainer? Or did I miss something, oh wait, let me take a stab in the dark here. After you posted the question, they all moved out? Sorry, been up since 4am here and starting to get a bit tired (sigh, again. I really need to get off that dang Graveyard Shift lol) and am being a blithering idiot here so I am asking not just for me but everyone here as well, just in case they feel a bit confused too lol....

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  • Ken D.
    OP
    Minneapolis, MN · Member since 2012 · 21 posts · 3 votes
    12y

    Nope. All tenants were moved out by 3/31/14 as their lease required.

    We only received 2/3 of the last month's rent because 1 tenant said we should take it from her security deposit. We told her we couldn't do that because the security deposit was for damages not rent, she didn't care and refused to pay. Now, perhaps we could have evicted them in the middle of March once we realized she wasn't going to pay March rent, but that seems like a huge hassle.

    Basically we wanted to punish the one tenant who refused to pay her portion of the last month's rent and flag her as a BAD TENANT so that other landlords will know to avoid her. That was our understanding of a UD. (Sorry for always speaking in plural, but we're a husband and wife team).

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  • Richard Gaston
    Investor · Lakewood, WA · Member since 2014 · 119 posts · 8 votes
    12y

    @Ken D. Thats ok, we're the same way here me and my wife. I handle all the mundane stuff like the Learning and all. Then when we fully get it going, I am doing the buying and flipping (well the RE Agent will not me lol) but for the repairs seeing here in Washington I have to have a General Contractors License anyways (even if I don't do the work on the house) we decided to put our hands in, she wants to do the Landscape, she don't like the way I do it lol, but the end result I basically get it done my way she just thinks she got her way, unless its planting flowers or something.

    But that is mote and not really related to what you're saying. I think its the same here as there but for the Security Deposit it is illegal to do what they told you to do, but not sure. If its for Damages then that is what its suppose to be for, I don't think you can apply it towards the rent. I am not sure about the Laws on that but I do not think you can collect what they owe you if they have already moved out unless you can take them to court, but personally I think that would be a waste of time and your money seeing it may cost more to try to get 1/3 of the rent in court (court costs and other legal fees). I am sure an Attorney will agree and tell you to just chalk it up as a lesson learned. If you do a background check on your tenents and if there are bad marks on them, find out why. If its rent related then move on to the next prospects, less headaches that way. If I were doing a background check and find a bad credit rating on my prospective tenents I will find out why, if I find they have a criminal record again I will find out why and if anything is related to any apartments or houses they rented I will go to my next prospective Tenents until I find someone who is a decent tenent or at least somewhat decent. No late payments on Rent, No Drug users etc, no evictions on their credit report (up here landlords can do that I found out). But here I go again and getting wordy (talking to much lol)

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  • Marcia Maynard
    Investor · Vancouver, WA · Member since 2013 · 3k+ posts · 4k+ votes
    12y

    @Ken D. Never rely on a tenant's interpretation of the meaning of something that is on their legal record. If you are in this business, you need to understand the legal proceedings used in your jurisdiction and the meaning of the terms used in your jurisdiction. It is imperative that you understand Landlord-Tenant law better than the tenants.

    Unlawful Detainer is indeed very bad mark of the tenant's record if it is upheld by a judge in a court of law as being in fact true. Because it means the person was served legal notices to vacate by a certain date and stayed in the unit past the date allowed by law. Now again, it could happen that a landlord files UD erroneously or there is no evidence to support it and the tenant is not found guilty.

    The reason why a landlord may want a tenant to vacate a unit includes, but is not limited to: non-payment of rent, violation of other terms in the rental agreement, to clear the unit for remodeling or for sale (including conversion of apartments to condos.)

    Tenants are often confused about the terms. Many landlords are too. During tenant screening I will ask "Has a landlord ever asked you to move-out of their property? If yes, please explain." I used to ask, "Have you ever been evicted?" and it didn't get the information that I needed to know. What I really want to know is why they were asked to move and did they fail to move after being served legal notice to do so. I will drill down until I determine if they indeed broke terms of a prior rental agreement or if they broke the law and have an Unlawful Detainer on their record.

    Often, service of notice to vacate papers (terms will vary in different states) will achieve the desired result (voluntary move-out) with minimal expense. Not all eviction actions will result in Unlawful Detainer. In 19 years and with 15 rental units, we have only needed to file Unlawful Detainer once, but we have served "Notice to Pay Rent or Quit" and "Notice to Vacate" many times.

    Again no legal advice. Find out what is applicable to your jurisdiction. Hope this helps.

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  • Marcia Maynard
    Investor · Vancouver, WA · Member since 2013 · 3k+ posts · 4k+ votes
    12y

    @Ken D. and @Richard Gaston . I'm going to be blunt; please don't take this wrong. You two need to study up on Landlord-Tenant law for your jurisdictions or you are going to find yourselves in a world of hurt. Learn best practices and know the law better than your tenants do.

    Now that we have "the rest of the story", my advice for Ken Durden is to recoup your losses from the security deposit. (Hopefully you didn't earmark it for a specific purpose and do have it set up as a general security deposit that can be used for rent, fees, damages, missing items, extra cleaning.) Take only what you are legally entitled to by the terms of your rental agreement and the laws for your jurisdiction. Then MOVE ON and don't let your emotions overcloud sound reasoning. If and when a future landlord takes the time to do a reference check on these tenants, you will have a chance to give them a "reference" - but make it honest.

    1Reply
  • Richard Gaston
    Investor · Lakewood, WA · Member since 2014 · 119 posts · 8 votes
    12y

    @Marcia Maynard Actually I am going one step further when and if I decide to rent, I will make sure I have a PM for that, they are suppose to know Landlord/Tenent Laws as well as an Attorney :) IMHO Laws have changed since I studied Property Management years ago and of course like a dummy I did not pay attention and when I say years its been better the 15 years since I last done this. But Marcia you're right I should've known the laws better :)

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  • Kimberly T.
    Investor · Colorado Springs CO · Member since 2014 · 535 posts · 253 votes
    12y

    I agree with @Marcia Maynard (as usual!). Since the rental agreement was with all 3 (and they were jointly and severally liable), and the security deposit was from all 3, so the remaining rent owed as well as any other damages (cleaning above normal wear and tear, etc.) should come out of the deposit for all 3. What you now need to do is do a line item accounting of what expenses were deducted from the deposit, then mail them a check for the remainder of the deposit along with a copy of the accounting of the deductions. Make the check out to ALL 3 TENANTS (for example: Jane Doe, Jackie Smith, and Jenny Jones). It is up to them to fight over who is entitled to what portion of the remaining money, not you.

    In the future, I would recommend against accepting partial payments from different tenants in the same unit. You should only accept a full rent payment, not portions. The tenants are jointly and severally liable for the entire rent amount, so you shouldn't be concerned with who pays how much of the rent.

    Also, in the future, I would absolutely start the eviction process if a tenant refuses to pay last month's rent. They will a) realize that you mean business and pay up; b) hurry up and vacate early; or c) call your bluff and end up with an eviction on their record (boy, that will teach them, huh?). Don't let tenants think they have the option of not paying you. Ever.

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