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Using security deposit for last month’s rent

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POSTED December 23, 2016 7:09 p.m.



Q:  I am always eager to read your columns on real estate law and feel obligated to respond to one of your recent columns. I understand you are not advocating breaking local landlord/tenant laws which generally require a tenant to pay the last month’s rent and for the landlord to return the deposit, minus any damage expenses.
Let me briefly relay my experience some time ago as a tenant. I was a new attorney working for Legal Services Corporation.  Upon moving out of an apartment which was part of many properties owned by the landlord, she decided not to return my security deposit. When I sued, the judge cut the baby in half by awarding me half of my deposit.  I appealed and won my claim for the deposit to be returned. However, my claim for attorney’s fees was denied, even though her aggregate apartment holdings vastly exceeded the number units under which a landlord was protected. The landlord never filed an appearance and never paid me the money. (I don’t even remember ever getting a signed order of the opinion.)
Anyway, in my subsequent years as an attorney, a renter, and the manager of my mother’s six-flat apartment building for many years, I have become acquainted with both sides of the issue of what to do with last month’s rent.  The best option for a landlord is to carefully screen tenants and to be a good judge of character and the obverse is true for a tenant. When a landlord is unscrupulous, non-payment of the last month’s rent is sometimes an option. (I can say this as I am retired.  Jeanine.
A:  Dear Jeanine. Thank you for your helpful comments. The “last month’s rent” is a serious issue that troubles both landlords as well as tenants. Almost every residential lease I have ever seen contains this language: “Tenant may not use the security deposit for the last month’s rent”.
A lease is a binding, legal contract between landlord and tenant. In theory, both have equal rights; in practice, however, as we know, the landlord generally has the upper hand; she may have access to an attorney and may have money to spend on legal issues.
I cannot in good conscience recommend that tenants use the security deposit as the last month’s rent. But here’s one suggestion: if you as a tenant have a good relationship with your landlord, a month before you plan to vacate talk with your landlord. Explain that you are moving in one month, and need money as a security deposit for your new rental. Ask the landlord to inspect the property, and if it is acceptable, to allow you to use your security deposit for the last month’s rent.
Of course, if problems occur during the month, you may still be obligated to pay for any damage. If you have been a good tenant, in many instances your landlord will cooperate with you. In some cases, the landlord will agree to accept half of the last month’s rent and use half of the security deposit for the balance. When you move out – and if all is acceptable – you will get the rest of the deposit.
Q:  Why do I need a Will. I have one heir – my son – and my only asset is my house?  Kevin.
A:  Kevin, that’s a great question. At first blush, you would think that on your death, you son would automatically inherit your house. But unfortunately, it’s not that easy.  Although I don’t profess to know the laws in all 50 states, from my experience, your estate will have to be probated. Should not be a problem but will clearly be a delay.
Your only heir is your son. I just read that Prince – who died several months ago – did not have a Last Will and Testament, and the lawyers – and the court – are trying to determine who are the legitimate heirs.  While I assume you are not in the same income bracket as Prince, his message must be learned: prepare a Will, name your heir(s). In fact, you may want to put the property into a trust, which would avoid probate.
Regardless, talk to a lawyer as soon as you can.

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