$1350 should I do return or keep

18 Replies

Hi BiggerPockets I need your thoughts on this situation, I have a  tenant in sfh (good tenant always on time with payment ) his lease was up November 30, the lease has a month to month clause, and 60 days written notice to terminate the lease, he called me on December 4th to pick up the keys I ask him why he did not give me a notice as the lease states, his answer was that on October 25 when I came for inspection he told me that he will be moving out, i was  surprise for him to tell me that, his deposit $1350 is he  entitled to have it back, 

Unless the property requires repairs I believe he is entitled to have his deposit back.

I suppose that if you required a written notice, and he did not provide that, coupled with the fact that it was supposed to be a 60 day notice, and he gave you a 30 day notice verbally, you probably could have an argument to keep his deposit. However, you may have to discuss it in court if he is not satisfied with your answer.  A judge may side with him citing your "technicality" as excessive.  

If it were me, I would return it.  However, I WOULD charge him a prorate for the 4 days of Dec since he should've been out at the end of Nov. (following along with his lines of understanding that he only needed to give you a 30 day notice).  That may be a good compromise.

Hope that helps.

You don't have to return the deposit until (typically) 30 days after the lease is ended. Of course it depends on the exact language of your lease but if you require written notice, then verbal notice is not valid. Your tenant screwed up and you can be nice about it if you wish but you are now left with an empty home and lost rent, so I would not personally be "forgiving." In my book he still needs to give you formal notice, then it's 60 days after that when the lease ends, and then 30 days after that until the deposit is due back. This also means he is on the hook for rent until the lease ends (unless you find a replacement). If he doesn't pay rent then you may use the security deposit to cover lost rent. If he does pay rent until the end and there are no tenant damages beyond normal wear and tear, then you would ultimately return the deposit. 

Did the lease require both of you to give notice? You to give 60 days if not renewing, and him to give 60 days if not renewing? Are you in compliance with FL Chapter 83 Part II? Did you find a new tenant and not lose rental income? If I understand correctly, the lease ended Nov 30 and then was to move into a M2M status? If his lease ended Nov 30 and he did not pay Dec rent it would appear he never moved into a M2M status which required a 60 day notice to cancel. If that is correct, I would return it. If you charge him for four days rent, more than likely he won't complain, especially if he was a good and reasonable tenant. Whatever you do, don't miss the notice deadline. I am still not clear if the original lease required a 60 day notice if they intended to move. I usually don't see that in most leases, but do see that if the tenants are M2M even though statute is 15 days. If a tenant agrees to a 60 day notice even though on a M2M, I believe that would prevail because  I do not believe it is a violation of law and their rights...but am not 100% sure about that. Leases cannot contain clauses the are in violation of landlord-tenant or other state laws. 

If he was a good tenant and told you verbally on Oct 25, and he didn't trash the place.....give him his deposit back. By all means charge him a prorated rent for the extra days in Dec

Sure you can get all "well it wasn't written notice" etc etc..... but don't....he told you face to face. If you didn't start to plan for him to move out, then that's on you. So can you make a legal case out of it....sure....but is it worth it? Hell no....

Why do security deposits? Why not just do a move in/move out fee?

When a tenant gives me a verbal notice instead of written, I follow up immediately with a written notice reiterating what s/he has told me. That way, we've got it on record and I can move on with lining up the next tenant.

Yes. As I see it you must return the security deposit, less legitimate charges for damages/unpaid rent/unpaid utilities/unpaid fees.

The tenant had a lease which was scheduled to end on November 30 and he told you on October 25 his intention to leave at the end of his lease. That would have been your cue to clarify all of this and put it in writing. The lease simply expired and the tenant was well within his rights to vacate at that time, without giving 60 days written notice.

The landlord-tenant law for the jurisdiction trumps anything you write into a lease or rental agreement. If at the expiration of the lease the tenant had indicated their wish to stay and enter into a M2M rental agreement, Florida law gives either party the right to terminate the tenancy with a mere 15 days written notice. 

I favor M2M tenancies which automatically renew monthly. No confusion. No lease renewal hassles. No confusion about what kind of notice is required to end a tenancy.

About the extra four days.... if the tenant was still occupying the unit and did not return possession of the unit to you until December 4, then prorate those four days and deduct it from the security deposit. Be sure to do your final accounting and return the unused portion of the security deposit in a timely manner, in accordance with the landlord-tenant law for your jurisdiction.

If the tenant did not give you a 60 day written notice as required by the lease, than he has violated the terms of the lease agreement. You are entitled to deduct the amount of rent that he owes you from his deposit. Its up to you.

His lease expired Nov 30 and he notified you he was moving?  The 60 day written notice would only apply when it went to MTM and it sounds like he just moved when the lease ended.  

The deposit can cover damages but not unpaid rent

Thanks everyone, you guys are awesome,  I think i will deduct the 4 days in December and return the rest of the deposit after all he was a good tenant , I will move on and look for new tenant 😎

Don't just prorate and give him the deposit back.  Send the required notice of your intention to make a claim on his deposit for the four days and send it certified return receipt.  He has 15 days to dispute your deduction and then you send the check to him.  I have written up a contract that says the tenant waives mailing the statutory notice for the deduction and that they agree to the amount deducted and have received the balance -  check # and amount.  I get two copies and we both sign and each keep one.  

@Mark Suliman a couple thoughts:

1. Your lease should specify if his notice to terminate must be in writing. If it doesn't specify then you have to accept a verbal notice. He said he gave it. You would have a hard time proving to a judge that he's lying. If your lease specifies notice must be in writing then you have a good case.

2. If the tenant gave acceptable notice on October 25th, your lease requires 60 days notice which means he would be responsible for rent, utilities, and upkeep of the home until December 25th. If he hasn't paid rent for December, you could apply the deposit toward that unpaid charge. However, you should never apply the deposit towards any charge until the lease is terminated on December 25th just to keep things clean.

3. If your lease requires written notice then you have a good reason to not accept his supposed termination notice on October 25th. You could (I say could, not should) require him to give written notice right now and then hold him liable for an additional 60 days of rent.

4. Most states require you to make a "good-faith effort" to find a new tenant. This generally means you should advertise it in the same manner as you would with any other vacancy. If a new tenant is found and they start paying rent December 15th, then you can only hold the departing tenant liable up until the new tenant takes over.

I don't know your situation, your lease, what your tenant said on October 25th, your rental market, or how well you could defend your position in a court of law. Based on what I do know, I would recommend you start advertising immediately and try to find a new tenant as quickly as possible. Hold the current tenant responsible for rent and utilities until December 25th or when a new tenant is placed, whichever is sooner.

@Brie Schmidt I think you're wrong. Check out THIS ARTICLE written by a Chicago attorney. He makes it pretty clear that the Landlord and the Tenant can apply the deposit towards unpaid rent.

It sounds like Chicago lease agreements try to waive this right, probably because Landlords want to prevent tenants from using the deposit for the last month's rent.

One more example of how screwed up Chicago is. No offense intended.

Originally posted by @Nathan G. :

@Brie Schmidt I think you're wrong. Check out THIS ARTICLE written by a Chicago attorney. He makes it pretty clear that the Landlord and the Tenant can apply the deposit towards unpaid rent.

It sounds like Chicago lease agreements try to waive this right, probably because Landlords want to prevent tenants from using the deposit for the last month's rent.

One more example of how screwed up Chicago is. No offense intended.

 I use the Chicago Association of Realtors lease, and most landlords do.  It specifically states tenants cannot use SD as rent

But I was not referring to a lease provision.  If the tenant's lease expired Nov 30 and he did not renew it, he would not owe unpaid rent.  

@Brie Schmidt I don't mean to argue the point but it appears you didn't read the article. Most Chicago leases claim the deposit cannot be applied towards rent but that directly conflicts with the law, as the attorney pointed out. You can read the actual statute for yourself or read the pertinent paragraphs below:

(d) The landlord shall, within 45 days after the date that the tenant vacates the dwelling unit or within 7 days after the date that the tenant provides notice of termination of the rental agreement pursuant to Section 5-12-110(g), return to the tenant the security deposit or any balance thereof and the required interest thereon; provided, however, that the landlord may deduct from such security deposit or interest due thereon for the following:

(1) any unpaid rent which has not been validly withheld or deducted pursuant to state or federal law or local ordinance; and

(2) a reasonable amount necessary to repair any damage caused to the premises by the tenant or any person under the tenant’s control or on the premises with the tenant’s consent, reasonable wear and tear excluded. In case of such damage, the landlord shall deliver or mail to the last known address of the tenant within 30 days an itemized statement of the damages allegedly caused to the premises and the estimated or actual cost for repairing or replacing each item on that statement, attaching copies of the paid receipts for the repair or replacement. If estimated cost is given, the landlord shall furnish the tenant with copies of paid receipts or a certification of actual costs of repairs of damage if the work was performed by the landlord’s employees within 30 days from the date the statement showing estimated cost was furnished to the tenant.


Every Landlord should remember one very basic rule: you can put anything in a contract but that doesn't mean it will stand in a court of law. If the law authorizes a Landlord to deduct unpaid rent from the security deposit, then that is what the court will uphold, regardless of what your contract says.  I can't explain why attorneys for the Chicago Association of REALTORS would create a lease that conflicts with law but that appears to be the case based on a clear reading of the law and several web sites from Chicago attorneys.

Originally posted by @Nathan G. :

@Brie Schmidt I don't mean to argue the point but it appears you didn't read the article. Most Chicago leases claim the deposit cannot be applied towards rent but that directly conflicts with the law, as the attorney pointed out. You can read the actual statute for yourself or read the pertinent paragraphs below:

(d) The landlord shall, within 45 days after the date that the tenant vacates the dwelling unit or within 7 days after the date that the tenant provides notice of termination of the rental agreement pursuant to Section 5-12-110(g), return to the tenant the security deposit or any balance thereof and the required interest thereon; provided, however, that the landlord may deduct from such security deposit or interest due thereon for the following:

(1) any unpaid rent which has not been validly withheld or deducted pursuant to state or federal law or local ordinance; and

(2) a reasonable amount necessary to repair any damage caused to the premises by the tenant or any person under the tenant’s control or on the premises with the tenant’s consent, reasonable wear and tear excluded. In case of such damage, the landlord shall deliver or mail to the last known address of the tenant within 30 days an itemized statement of the damages allegedly caused to the premises and the estimated or actual cost for repairing or replacing each item on that statement, attaching copies of the paid receipts for the repair or replacement. If estimated cost is given, the landlord shall furnish the tenant with copies of paid receipts or a certification of actual costs of repairs of damage if the work was performed by the landlord’s employees within 30 days from the date the statement showing estimated cost was furnished to the tenant.


Every Landlord should remember one very basic rule: you can put anything in a contract but that doesn't mean it will stand in a court of law. If the law authorizes a Landlord to deduct unpaid rent from the security deposit, then that is what the court will uphold, regardless of what your contract says.  I can't explain why attorneys for the Chicago Association of REALTORS would create a lease that conflicts with law but that appears to be the case based on a clear reading of the law and several web sites from Chicago attorneys.

 I was not talking about Chicago or what the lease states.  Simply that his lease ended, he moved, and is not owed rent for the time after he moved

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