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Ask Legalease Your Own Question
Legalease
Legalease, Lawyer
Category: Legal
Satisfied Customers: 16288
Experience:  15 years exp all aspects of general law
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My son's landlord sold her apartment building and is

Customer Question

My son's landlord sold her apartment building and is refusing to pay first and last month's security deposits back. Is this legal?
Submitted: 3 months ago.
Category: Legal
Expert:  Legalease replied 3 months ago.

Hello there --

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There are legal differences between a landlord accepting a last month's rent at the time your son moved in and / or accepting a security deposit when your son moved in. Can you clarify for me whether he paid a last month rent and a security deposit (or if it was just ONE of these, which one it was)? You see, when a property is sold, the law treats these payments differently between the old owner, new owner and the tenant and so I need to know which it was before I can answer your question completely.

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MARY

Customer: replied 3 months ago.
It was stated as first month/last months rent due upon signing lease.
Expert:  Legalease replied 3 months ago.

Hello again --

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Okay. So it does not sound like the owner ever called that payment a security deposit. In any event, your son is not entitled to receive that money back when the house changes hands to a new owner. This is a common misperception and mistake that tenants make but it is not the case. Here is how it works: When a landlord accepts a first months rent, that money obviously would go to pay for the first months rent and so it becomes a non issue so long as the tenant is given the appropriate rent credit for the first month rent when the tenant moves in. Basically, the owner/landlord keeps that one month payment and it is used towards the first month's rent under the lease. Now, if an additional deposit is given beyond the amount of the first month's rent, the law will recognize that payment as either a last month's rent or a security deposit depending upon what is written in the lease AND if the amount is enough to cover the payment of one full month rent at the end of the lease term. If the amount is enough to cover a last month's rent in your son's case, then the legal obligation here is on the OWNER/LANDLORD to either (a) offer your son a free month's rent as the "last month" under his ownership of the property during the month or two leading up to the transfer of the property, OR (b) TRANSFER that payment to the new owner of the property on the closing date and then it is the responsibility of the new owner to give your son the last month of his tenancy as free/paid for at the time your son moved into the property (the new owner is legally required to ask questions regarding the current tenants and receive copies of their leases and then the old owner is legally required to transfer over any last month's rent (that is unused as of the closing date) OR security deposit that the old owner has been holding since the beginning of the lease term with your son).

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So, if it was a last month's rent the old owner should either offer your son a free month of rent before the transfer OR the old owner should transfer it over to the new owner as of the closing date. If it is a security deposit (which security deposits do not legally have to be returned until the end of your son's tenancy), then the old owner is legally required to transfer any security deposit accepted by him to the new owner as of the closing date (there are no provisions in the law that force the landlord or new owner to return this money to your son until the end of the lease term -- just as if the property had never changed hands while your son was a tenant). If the new owner permits your son to stay and honors the lease that is already in place, then the new owner is responsible to your son for the return of any security deposit at the end of the tenancy and if that security deposit is not mentioned and is not offered back to your son when he moves out, your son will then have to pursue the landlord in small claims court in the local county courthouse to get the security deposit returned to him by the new owner (the court will order him to return it to your son. You see, sometimes the new owners are "cute" and try to claim that they knew nothing about the security deposit and never received it from the prior owner but the local court will not care and will order the new owner to give it back to your son and then tell the new owner that if he truly never received it from the prior owner then it is the new owner's responsibility to sue the old owner for the payment of any security deposit and any last month's rent that was never used or credited to your son while he was a tenant).

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Either you or your son should have a conversation with the current owner of the property to discuss any last month's rent or security deposit that your son paid upon moving into the premises and find out from the owner if he plans to pay this to your son as either a free last month or as a security deposit return at the end of the lease OR is the new owner going to "play stupid" and claim that he or they never received these monies from the old owner and did not know anything about it. If the response to you and/or your son indicates that the new owner does not plan to do anything at all about this additional payment due to your son (either Now or at the end of the lease term) then my suggestion is that your son go to the local county courthouse and go to the clerk;s office for civil business and ask for the forms and paperwork for small claims court. Your son can do this without a lawyer and simply complete the paperwork and submit that paperwork to the court and the court will set a hearing on the matter within about a month and then the judge will make it perfectly clear to the landlord / new owner that he or they must pay the last month's rent or security deposit to your son when the end of your son's lease term approaches. Your son can complete this paperwork and attend the hearing without using an attorney and small claims court is very informal -- there should be no issues here so long as your son has a copy of the lease with the language about the last month's rent in the lease (which lease language will be used against the new owner/ landlord).

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I hope that helps. Please let me know if you have any further questions. If not, can you please press a positive rating above in the ratings section so I will be paid for my time assisting you? I am paid nothing for answering your questions unless you press the middle star or the fourth or fifth star to the right of the middle star above. Doing so will not cost you any additional money -- it simply acts as the trigger to Just Answer to pay me for my time for assisting you today. THANK YOU VERY MUCH !!

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MARY