Failure to return security

UPDATED: Oct 1, 2022

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Failure to return security

We paid rent for last month but never actually moved in. We did sign a lease but we notified the landlord on the 15th but due to loss of a job, we could not move in. We did not ask for the month’s rent back as it was already the 15th but we asked for the $1175 security and $150 pet deposit. The landlord understood and agreed to return our deposits in an email. We gave the landlord cash for both the rent and the deposit but the landlord insisted that we can only get the deposit back from the bank and would notify us when it would be released. We returned the keys on the 18th and were told that we would get the check in 3-5 days. Then the landlord texted to inform me that the check was made on the19th with an expected delivery of the 28th. However, a week later, the check has still not been received. I’m thinking that we are getting the run around now and I don’t know what to do. We did sign a lease that we technically broke but the landlord never brought it up and agreed to return the deposit. We gave them the full month of rent but since we never moved in, only cleaned before we intended to move, we asked for that deposit back. Now I’m afraid they do not intend to follow through on that. Do we have a case for small claims?

Asked on October 3, 2017 under Real Estate Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Unfortunately, the answer to your question comes down to "we did sign a lease." Once you sign the lease, you are obligated to the full lease term, and *all* the rent due thereunder, even if something happened in your life (e.g. loss of a job) to make leasing unwise or impractical. Therefore, assuming your lease was for more than one month, you owed rent for at least one additional month--possibly for many more months (e.g. another 11, if it was a 12-month lease). Since you owed much more unpaid rent, your landlord could keep your deposit and apply it against the amount you owe.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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