How toI fight a security deposit issue with a potential roommate?

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How toI fight a security deposit issue with a potential roommate?

I’m renting a 1 bedroom in a completely furnished 2 bedroom apartment.  I found a tenant who loved it; she promptly gave a security deposit to secure the apartment from being shown or given to someone else. Several days later she changed her mind. She offered to stay a month or so month and give some money if that would help me. Then several days later the amount of the security deposit was deducted from my bank account (due to a stop payment). She now refuses to give the money back and says that I’m not entitled to anything even though I turned away potential income holding the apartment for her. Can I take her to small claims?

Asked on February 6, 2011 under Real Estate Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If you had an agreement, oral or written, with the prospective tenant that the deposit was to hold the apartment and NOT a security deposit, you can sue her for the deposit. (A security deposit is to provide a security against tenant damage to the apartment or nonpayment of rent; it is not a  deposit to hold an apartment while a tenant thinks about, arranges her finances, etc.) If it was just such a deposit to hold the apartment, you could also sue her for any other costs incurred as a result; e.g. if you bounced a check because of the stop pay and incurred a bounced check or overdraft fee. You may sue her in small claims on either an oral (a/k/a verbal) or written agreement, though with an oral agreement, proving the existence and the terms of the agreement can be difficult if the other party does not agree with your recollection or interpretation.


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