Can we use our security deposit as our last month’s rent without legal action being taken against us?

We have read about a number of issues with our landlord never returning the security deposit to other tenants (deposit = 1 month’s rent). Also, anytime we have asked for repairs, they have not been addressed (leaks, heat not working during winter). The landlord frequently gives us the response “If you don’t like it, move out or sue me.” We’re feel that paying the last month in rent ensures that we will lose out on the money we need to deposit for our new lease at another apartment.

Asked on November 2, 2011 under Real Estate Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

You can ask the landlord to take your deposit as last month's rent, but he is not required to do so--and is unlikely to do so, since if he used the deposit for that, then it's not available in case repairs, due to damage you did to the premises, are necessary.

You could simply not pay the last month's rent. As a practical matter, you'd be moved out before the landlord could evict you or take legal action. The landlord could then take the last month's rent from the deposit--though if you owe other amounts that would normally come from the deposit (such as for damages), he could then sue you for that money.

Or you could pay your last month rent and if the landlord does not return your deposit, sue him (including in small claims court). In many states, like New Jersey, if the landlord unlawfully withholds a security deposit, he or she is liable for additional monies, too.

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