What to do if my landlord has not given me back my security deposit?

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What to do if my landlord has not given me back my security deposit?

We left a month before the end of our lease, but he found a new tenant to take over our spot. I did a walk through with him before I left, and he said that the place looked great. I asked when we would get our deposit back and he said when the new tenant moves in and pays him a deposit. It has been three months and we have not received a phone call, e-mail, or letter in the mail from him. We have tried to contact him numerous times but he keeps stringing us along. He says the tenant hasn’t paid him a deposit yet, so he can’t pay us yet. Do we have a right to take him to small claims court and do you think we could win?

Asked on January 4, 2013 under Real Estate Law, Colorado

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Yes, you could sue him for the deposit and would seem to have a reasonable chance of winning, subject to the below. A landlord may only lawfully withhold part or all of a deposit for 1) damage, which exceeds normal wear and tear, done to the unit; and 2) unpaid rent, owed at the end of tenancy. The landlord may not withhold a deposit because the next tenant has not yet provided his/her deposit.

If there was no damage, then the issue would be when did the new tenant take over? If the new tenant seamlessly took over as you were walking out the door (so to speak), so that the landlord did not lose any rent, you would seem to have a good chance of winning. If there was some period between you breaking your lease early and the new tenant beginning to pay rent, so that the landlord lost some or all of that month's rent (the month you move out early), the landlord would be entitled to keep an amount from the deposit equal to the unpaid rent.


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