IfI paid half of my first month’s rent but could not come up with the rest beforeI moved in, do I get a refund?

I paid the landlord half rent and received the keys, but the next day I could not move in because I could not come up with the rest of the money. It was 24 hours later that I informed him that I could not move in. The landlord tells me that he is keeping the rent until he can secure another tenant. But since I didn’t move in, shouldn’t I be due my money back?

Asked on September 21, 2010 under Real Estate Law, Florida


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

Answered 10 years ago | Contributor

Whether written or oral, a lease is a contract and you are breach of it - you did not pay your rent when due.  This is true even if you did not move in. Consequently your landlord may keep the rent that you did pay to cover its damages (ie being stuck with an empty rental unit).  However, under the law your landlord is required to "mitigate" its damages. This means that they must use reasonable efforts to re-let the space. If they do, then you are entitled to a refund for the part of the month that your landlord would have double rent.  If, however, it takes them more than 2 weeks to re-rent , then you have no money coming to you (since you only paid for 1/2 of the month).  Additionally, your landlord can deduct for the cost to re-advertise the unit plus related expenses.

Note:  I'm assuming that you had a month-to-month rental.  If you had a lease for a greater term you are responsible for rental payments until the end of the stated term (again unless your landlord is able to re-rent the space).

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