Can a landlord keep a security deposit because of “late fees” even though he never warned you that you were incurring the charges during your tenancy?

UPDATED: Sep 13, 2011

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Can a landlord keep a security deposit because of “late fees” even though he never warned you that you were incurring the charges during your tenancy?

I did not receive my security deposit back from my landlord. So after 30 days I finally sent him a letter and received an itemized statement back from him. He claimed that I had incurred numerous “late fees” which I can only think of as being caused by paying rent late. It is stipulated in the lease agreement that he can charge me for late fees but he never told me that I incurred any of them last year. I do not dispute the fact that the rent was paid late but is he allowed to not mention that I have incurred these expenses and then take it from my security deposit?

Asked on September 13, 2011 under Real Estate Law, Ohio


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

You need to carefully read your written lease agreement between you and your former landlord concerning your formal rental in that its terms and conditions control the obligations owed to you and vice versa in the absence of conflicting state law.

Ordinarily a security deposit placed by a tenant is to cover "damages" caused to the rental during the tenant's occupancy not caused by normal wear and tear. In most states at the end of the tenancy, the landlord is required to return the security deposit within a certain time period (21 to 45 days depending upon the state) and if the full amount is not returned to the tenant, an itemization of the debits with receipts showing the debit need to be provided.

From what you have written, if the landlord was going to charge you a late fee for late rental payments, he or she should have let you known this right after the late payment was accepted. To wait until the end of your lease and to debit late payments from your security deposit does not seem allowable.

I would write him or her regarding this requesting the return of your security deposit by a set date. If not returned, you option may be a small claims court action.

Good luck.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

If you owe the fees, it does not matter whether the landlord told you about them at the time you incurred them--you are still liable for them. It's like anything else you may do that gives rise to a cause of action against you; for example, if you forget to pay rent one month, the landlord may take that rent out of your security deposit at the end of your tenancy, even if he never mentioned the omission; if you deliberately damaged your property, he can charge you for that, even if he never said anything at the time; etc.

So the fact that the late fees were not mentioned at the time you inucurred them does not prevent the landlord from taking them out of your security deposit, if they were denominated as rent or additional rent in the lease. He can only take out the actual amount of fees, however.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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