Tenant leaves before lease is up - can I keep the whole deposit?

Question

I have a tenant on a one year lease that left after two months. She had issues with finances and could not pay rent. We gave her official notice to vacate in 3 days, which she did. That was on the 14th of the month. Can I keep the full security deposit for nonperformance of a lease? If not, can I keep 14 days worth? I emailed her and have yet to get a forwarding address for her to send her anything I might owe.

Erik Bowling · Answer

Thanks Kurt. I have the unit advertised and looking for a new tenant. That said, if it takes me a month to 6 weeks to get someone in there, then I can keep the deposit, correct?

Kurt K. · Answer

Typically if they do not give a forwarding address you do not have to give them a list of damages with the deposit return (or no return). However, they are still entitled to their deposit if they contact you, even months later, for their deposit.

You can keep the deposit insofar they are still required to pay rent on the lease until you find a new tenant, but you MUST be actively seeking a new tenant. So, if you find a new tenant right away, you cannot keep the deposit as damages if the contact you later.

That's how it goes in MI anyway. Your state laws may vary.

Erik Bowling · Answer

Thanks everyone! My lease states the following:

Tenant agrees to pay $850.00 as a security deposit to be used by Owner / Manager at the termination of this lease toward

reimbursement of the cost of repairing any damage (other than ordinary wear and tear) to the dwelling caused by Tenant,

members of the household, or persons on the premises with the consent of Tenant or members of the household, and any

rent or other charges owed by Tenant. The security deposit may not be used as rent payment while the Tenant / Lessee

resides on the premises.

Owner / Lessor agrees to return the security deposit to Tenant / Lessee within thirty (30) days after tenant vacates, less

any deductions for any of the costs indicated above. The security deposit may not be used to pay rent or other charges

while Tenant occupies the dwelling. If Tenant provides Owner/Lessor with a forwarding address, Owner/Manager will

return the security deposit less any proper deductions, to that forwarding address.

Ohio law states the following:

http://codes.ohio.gov/orc/5321.16v1

I asked her for a forwarding address, but did not receive a replay from her. The law appears to read that if I hear nothing from her in 30 days, I give her nothing. I thought about mailing a check, if I owe her, to the apartment and see if it gets forwarded. That seems like a bad idea!!!

Billie Miller · Answer

In CO I don't think you can keep the security deposit as the last month's rent. You'll have to look up your state laws on what you can do in this situation.

Jeff G. · Answer

@Erik Bowling, when the tenant moved in did you get first AND last month's rent? Or, did you just get a security deposit. If you got a security deposit only than, as I understand it, the answer is no. Security deposits are to handle issues of "damage" to the property. This can be actual physical damage or money you had to spend to clean the place up even though the property itself wasn't mistreated.

How this is usually handled is by filing in housing court for money damages due to missed rent. You can only go after her for the time period between the time she left and the time you got a paying tenant in the unit. If that takes a month or two, then you can go after her for a month or two's lost rent.

You may need an eviction lawyer to help you through this process, but you can also pass his fee on to the tenant if you succeed in obtaining a judgment.

You might consider requiring LAST month's rent too, in addition to first month's rent and a security deposit going forward.

I hope that helps.

Tenant leaves before lease is up - can I keep the whole deposit?

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