Can I cash a partial return of security deposit check and stillsue in small claims court?

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Can I cash a partial return of security deposit check and stillsue in small claims court?

My landlord gave me check for $900 with the endorsment “final deposit return” on it. He sent it after the 45 day deadline as well with a list of bogus damages and no receipts. I am owed the remaing balance of $300. I have sent him a letter disputing the amount he has returned to me. Can I cash the check and still sue him in small claims court for the remaining balance of $300?

Asked on October 5, 2010 under Real Estate Law, Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Yes, you may cash the check and sue for  the disputed amount. It is a misconception--though admittedly, a common one--that one party's unilateral writing of "paid in full" or "final deposit return" on a check has any legal effect whatsoever when there is an outstanding debt. In a situation where you would be owed AT LEAST the $900--neither you nor the landlord dispute that at least that amount is owed--you can cash the check while continuing to pursue any disputed amounts. For a balance of $300, small claims court would be the correct venue to pursue the additional money. Obviously, you should muster any evidence of your own that the damages are "bogus"--pictures, for example; other witnesses you could bring in; or any evidence that the amounts charged to remediate are too high for what was allegedly done (e.g. other estimates for like repairs).


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