CanI get my full security deposit back if changed my mind about moving in?

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CanI get my full security deposit back if changed my mind about moving in?

We gave a landlord a deposit and he he faxed us an agreement later that day to sign so he could except the deposit; this was on the 27th. We were to then meet on the 28th to sign the lease, pay the first months rent and get the keys. However on th 28th we found another apartment and decided we were not going to move in to the first place so we wanted our deposit back. The landlord will not refund the full amount. He says that he will give us half now and the other if he can rent it in 2 weeks. He also wants us to sign an agreement saying we will not sue him in order to get the first half? What is the legal view on this situation?

Asked on August 2, 2011 California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

If this was a security deposit, then IF the premises was never actually leased, he may have to return it to you; that said, the act of sending him the security deposit could be construed as your agreeing to the lease--i.e. to your leasing the apartment--notwithstanding that you did not sign the lease yet. If it is the case that you'd be considered to have rented the apartment, the landlord may withhold the deposit and apply it against the rent you'd owe for the premises. In other words, if this was to be the security deposit, you *may** be entitled to its return, but that is not a given; and if the landlord won't return it voluntarily, you will need to sue him for its return, and the burden will be on you to prove that you are entitled to it.

If the deposit was not a security deposit, but was rather a deposit to hold the apartment for you (so it was part of the application or leasing process, but was not actually security against damages or nonpayment of rent), then you would only be entitled to its return IF the application, etc. said the deposit was refundable if you changed your mind; generally speaking, if the party who gives a deposit like this then wants out, the other party is entitled to keep the deposit.

In short, without something guarantying your right to receive the deposit back, there is a good chance you are not entitled to it; and trying to get it back--i.e. suing--could cost more than it's worth.

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Have you signed a written lease agreement with the person who you were to rent the apartment from? If not, you should be entitled to the return of your deposit for the unit you decided not to rent.

The laws in most staes are that all depositis for a agreement that has not been signed are typically refundable.

For the person who owns the unit that you decided not to rent to offer you half of the deposit back now and the other half if he can rent the unit in 2 weeks with a signed agreement that you will not sue him in order to get at least half of your deposit back is improper.

You should write this person immediately asking for the return of your money by a certain date keeping a copy of the letter for future reference. If not returned, you should consult with the local landlord tenant clinic in your community about your legal options.


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