If my original 1-year lease ended and I am now considered month-to-month, can I get my security deposit back if my roommate refuses to vacate?

UPDATED: Oct 7, 2011

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If my original 1-year lease ended and I am now considered month-to-month, can I get my security deposit back if my roommate refuses to vacate?

I am moving out because I found out my roommate was stealing from me. I sent the landlord my 30-day notice and he acknowledged receipt. However, my roommate will probably stay in the apartment. Am I still liable for the rent/apartment? Can I get my security deposit back since I am no longer in that contract even though my roommate is a holdover tenant?

Asked on October 7, 2011 under Real Estate Law, New York


S.J.H., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

The security deposit is the landlord's protection against damages after the premises is vacated so the answer depends on the condition of the premises after your roomate leaves. If he leaves and the property is not damaged then the security should be returned. If there are damages then any damages can be deducted from the security by the landlord regardless of who paid the security. I am not sure if the two of you each paid security to the landlord separately. If so, then the landlord can deduct any damages to the premises from your roommates share of the security deposit and return your money. However, also know that if the landlord has to evict your roomate and he recieves a judgment against him, he can withhold the security to satisfy the Judgment unless your lease specifically calls for two separate security deposits, one from each of you.  In all likelihood, you may have to sue your roommate for any security deposit that you do not receive. You may want to ask the landlord if he will return your half to you and require the roomate to make up the difference in order to stay in the premises.

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