Can a real estate agency give the apartment to someone who turned in a security deposit after I did if I was told a security deposit would hold it?

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Can a real estate agency give the apartment to someone who turned in a security deposit after I did if I was told a security deposit would hold it?

I gave a real estate company my rental application, application fee, and security deposit and was told that this would hold the apartment and take it off of the market until I am able to send them my loan information and get approval to sign a lease. Today, I found out that someone else has taken the place I put a deposit down on. The company lied to me and told me that the person had turned in their deposit the same day as me but I know for a fact that they turned in the deposit 2 days after I turned mine in. Also, I had been communicating with the realtor via email.

Asked on June 1, 2012 under Real Estate Law, Pennsylvania

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If the deposit was to hold the apartment, then so long as you complied with any other obligations you had, they could not give the apartment to someone else after you provided your deposit. To do so would be breach of contract (even if only an oral, or unwritten, agreement) and you could sue them for that breach. You cannot force the other tenant to leave and get that specific apartment (since the rights of an innocent third party are implicated), but you can force them to either give you a comparable (or even slightly better) apartment, or if none is available at property owned by them, you could seek monetary compensation--for example, if to get a comparable apartment elsewhere you have to pay more, an amount equal to the difference between the higher rent you are paying and the lower rent you should have been paying.

Bear in mind that if they will not voluntarily make good, you'll have to sue, which means you'll have to prove that you gave them, and they accepted, a deposit specifically to hold the apartment and that your deposit pre-dated the person who ended up geting the apartment; you can do this via testimony and also documentary evidence (e.g. emails, cancelled checks).


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