Using Tenant's deposit to cover rent in early termination agrmnt

[Brian Schwarzkopf]

Hi Everybody!

My tenant asked to be let off of his lease 2 months early and I decided that I want to sell the property so I offered them the deal that if they paid 1 of those 2 months (~$1700) and allowed us to start making upgrades to the property, they could be let off of the lease early. He wasn't happy about this and said something to the effect of "Well you want to sell as soon as possible, don't you? And you can't come in and replace the carpet if I'm still in posession of the house." 

My real estate agent recommended trying to sweeten the deal by offerring him the same deal only worded slightly different. He'd pay half of 1 of the remaining months (~$850), vacate on the 15th and I'd take the other half of the month out of his deposit ($800). His deposit is 2 months rent (~$3800).

So my questions are:
1- Is it legal for me to make this kind of a deal with the deposit? It seems to me from my internet research that I can't touch the deposit unless he fails to pay rent or causes damage to the property.

2- Is it wise to touch the deposit before he leaves? My agent has walked through the house and it seems in good shape and in fact, all his stuff is already moved out. But a lot can happen between now and when I get the keys back.

I'm kinda worried that he's just gonna stop paying rent and I'm going to either have to wait until the lease ends to start making upgrades or take legal action and evict which is going to cost me more money. Is there a better move here?

Thanks in advance!

[Ray Harrell]

Deposit is for damages first, and unpaid rent last. What if you let the tenant use the deposit for last months rent, and after they leave you find they stole your copper pipes? Let the pay the rent, and send them the deposit within 30 days if they have caused no damage.

But legally you can make any deal you want as long as the tenant agrees to it.