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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 35845
Experience:  16 years real estate, Realtor. Landlord 26 years
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Me and my husband rented a temporary apartment while we are

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Me and my husband rented a temporary apartment while we are renovating our house. We paid a months security and are renting it on a month to month basis. We will be ready to move out soon and my question is; do we not pay the rent for the last month and and have the landlord apply the security deposit for the last months rent or do we pay the last month's rent and ask the landlord to return our security?
Hello and thank you for using JA! My goal is to provide you with excellent service and help with your legal problem.
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do we not pay the rent for the last month and and have the landlord apply the security deposit for the last months rent or do we pay the last month's rent and ask the landlord to return our security?
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Unless there is a specific agreement with the landlord to use the security deposit for last month's rent, then you wouldn't legally be able to do so. The default law is that the security deposit can only be used for actual damages to the dwelling or lost/delinquent rent at the end of the lease. However, tenant and landlord are free to agree in the lease that they will apply the security deposit to last month's rent if they choose to.
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So if you don't have an agreement with the landlord about using it, you would have to pay the last month's rent and then have the landlord refund your security deposit after your tenancy has ended.
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Thanks.

Barrister

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If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

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I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.

Customer: replied 3 years ago.
We did not have a lease nor did we have a verbal agreement. The landlord has been difficult to deal with and we are afraid she won't return our security deposit.
Ok, if there was no lease or agreement, then the default is that you can't use the deposit without permission. You could try telling the landlord to use the deposit as last month's rent. But they may respond by serving you with a 3 day notice to pay or vacate if you didn't pay the last month's rent. Most landlord's won't agree to allow a tenant to use their security deposit as the last month's rent.
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The reason is that if a tenant caused a lot of damage to the dwelling, and the landlord allowed them to use their security deposit as last month's rent, then there would be no pool of money left at the end of the tenancy to pay for repairs. Then the landlord has to sue the tenant in small claims court for breach of contract.
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But if she doesn't return your deposit, you can always sue her in small claims court for its return and any court costs. If she doesn't pay, you can lien the apartment or garnish her wages or bank accounts.
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Thanks.

Barrister

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If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

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I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.

Customer: replied 3 years ago.
What if this landlord refuses to return our deposit?
If she doesn't return your deposit, you can sue her in small claims court for its return and any court costs. You can also ask for punitive damages if the landlord is acting in bad faith in keeping the deposit. Since they own the property, you have something to lien against if the landlord won't pay the judgment.
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Thanks
Barrister
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