If I have a tenant who has 3 months left on her lease and fails to pay any more rent, what rights do I have to her security deposit?

She has only paid for half of the current month. I am doubtful she will pay next month. If I serve her a 3-day notice to pay or vacate and she vacates, can I still take money out of the deposit for the unpaid rent from the time she leaves until I can get new tenants in? Or if she leaves is the lease terminated at that point and I waive my right to keeping deposit money for unpaid rent after she vacates?

Asked on January 27, 2013 under Real Estate Law, California


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

You may or may not have rights to the secuirty deposit under the cicumstances. In some jurisdictions, the security deposit can only be used to recoup damages caused by the tenant; in other jurisdictions it can also be used to apply to any past due rent in addition to any other amounts so collectes such as last month's rent). If the former case fits your situation, then you can still sue your tenant in small claims court for any amounts due; if the latter is applicable  your situation, then you can use the secuirty deposit for any money that you have been shorted until a new tenant can be found to take over the unit. At this point, contact a local attorney who handles landlord-tenant cases. They can best advise as to your rights/reponsibilites under specific state law.

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