Rent Increase - Deduct from Security Deposit?

6 Replies

Hi Guys, 

I have a quick question that I am hoping someone can answer. To make a long story short. I have a tenant whose lease expired in August. I specifically let them know via certified mail in August that for the month of October their rent would increase by $50 dollars due to them being on a MTM lease now. Throughout this month a had to constantly call them because October's rent payment was late. They then told me that they would like to use "Last Months" rent which they paid to the previous landlord as this months payment and they would vacate the premises by the end of this month.

My argument to them as well as my question to you all is. Shouldn't they owe me for the increase in rent for the amount $50 dollars as well as late fees because as of the 10th I did not receive a payment (They both pay separate so that would be double late fees) and I was told after the fact that they would like to use their last month's rent for this month.

To end this long ramble ( I apologize)!! I am thinking of just taking the money out of their security deposit once they leave. Am i right in thinking this way?

In my opinion-yes.

Their notice to vacate was it submitted to you by Sept 31 ? If so proper notice. If it was after the 1st then improper notice. 

I would not permit the security deposit to be used as rent.. and your lease should show that or the security deposit form should. They will always try saying OH that wasn't security it was last month's rent.. So know the law, Know your lease and underline it and give a copy back to them, With that said.

Yes charge them the $50.00 late rent fee. and If they don't pay you tell them you'll file unlawful detainer eviction action for non-payment of rent , you have no guarantee how they will leave the apartment. Give them the proper notices required.

Let them know you will process the security deposit statement as soon as possible. that you want to cooperate and not file the eviction but you want the rent now.

Did the previous landlord not collect a security deposit in addition to "last month's rent?" How is it called out in the lease, as a deposit or last month's rent? A lot of tenants don't understand the difference. Your options may be limited because there is only a week left in the month and some states don't allow you to go through the eviction process if the tenant has already vacated. You may just have to forego the additional $50, it isn't worth chasing, and tell them you'll approve the deposit being used as rent, pending inspection of the property. If it is a mess, I'd call a landlord/tenant attorney and see what your options are, or just take the deposit as rent, get the property renter ready and on the market ASAP and get a new/better tenant in there. 

I apologize for making my first post unclear. The tenants have both a security deposit and Last Months Rent. They decided after their payment was late and I posted a "Pay or Quit Notice" that they wanted to use their Last Month Rent to cover the rent that was owed. I told them that they would need to include the extra $50 (Rent Increase) and 2 late fees because they were late. I also sent a 30 day notice to vacate. Their response - We shouldn't have to pay the rent increase or late fees and they verbally mentioned that they would vacate by the end of this month. 

Since you have no idea whether they will vacate at the end of the month you do not know if this is their last month. For that reason I would not use their LMR deposit for October. Continue with the eviction process requesting full rent for October with increase and late fees. Hold their LMR and deposit for ransom until they pay.

Also since they did not give notice till after the 1st of October they are responsible for their rent till the end of November. Tell them this and make sure you include that in your payment request.

IMO, you have become myopic on the money and lost focus on the lease and control of the tenant - - you've abdicated control to the tenant.

Security deposit IS NOT the last months rent or any 'bank' to be used to catch-up; it's to offset damages.  You served proper notice of change in terms, so now enforce them with a 3-Day Pay or Quit.

In Calif, we can require a) first+last or b) first+security and security is limited to 2x the rent.

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