Can a landlord keep my depositif he breached the lease and rented to someone else?

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Can a landlord keep my depositif he breached the lease and rented to someone else?

My daughter signed a lease and paid a $1400 deposit. She got the keys/garage door opener and was to move in next day. However, within 24 hours the landlord called and told her that he rented to someone else who paid more. He then refused to give back her deposit. The locks and codes were changed. Then 5 days later the other tenants backed out of agreement. Now he is holding my daughter to her agreement and charging her.

Asked on October 19, 2011 under Real Estate Law, Arizona

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

No...the landlord may not keep the deposit when he is the one who breached or violated the agreement. If your daughter had breached, then the landlord could likely have kept it--one of the purposes of the deposit is to encourage tenants to not breach, by making it cost them cash up front to do so--but the landlord is not entitled to it when he breaches.

Also, the landlord cannot now hold your daughter to the lease or agreement, not after he breached it. If she wanted to take the apartment, as the non-breaching party, she may still be able to enforce it (generally, the non-breacher gets the option of either continuing the agreement or treating it as termmianted)--and note that if she does consider the agreement still in force, then the deposit would stay with the landlord as if nothing had happened--but the landlord may not force her  to honor the contract. Rather, when one party to an agreement materially breaches it (or breaches it in a critical fashion, such as renting a leased premises to someone else), the other party may consider the agreement terminated.

If the landlord won't give your daughter he money back, she may need to sue to get it.


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