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February 6, 2009
Security Deposit Problems
On the 22nd of January my roommate left me a note saying that she was going to move out at the end of January. I talked her into moving out at the end of February. She wants me to give her, her security deposit and the last month's rent of the lease back. However she is not on the lease...should I give her the money back?
Comments
yes, you should unless you are a thief
Posted by: eman1234 at February 6, 2009 8:19 PM
You have a month and one week to find another roommate ,yes you should gave her back the deposit and last month rent.
I have a roommate here leaving with me , if i had to move out the apartment or if i want him out of the apartment i will give him a month notice a month is fair.
Posted by: benoit at February 6, 2009 8:28 PM
YES
Posted by: Ysabelle at February 6, 2009 9:27 PM
unless she is offering something else. If you know what I mean?!?! Wink, Wink!
Posted by: modsquad at February 6, 2009 10:33 PM
Why wouldn't you give the deposit back?
Posted by: vanburenproud at February 7, 2009 7:33 AM
What do you mean "and the last month's rent of the lease back. However she is not on the lease."
Was this money she paid as a deposit in addition to the security deposit?
If so, then yes, give her both back.
Posted by: SenatorStreet at February 7, 2009 8:36 AM
First: you and your roommate are communicating via note—not a good sign. Second: she cooperated with you by staying an extra month, and you want to return the favor by withholding her security deposit and last month's rent—
bad reflection on you. Third: you protected yourself by signing a lease, seemingly need a roommate to meet your rent, but now want to pretend your roommate has no rights or protections without a signed lease—premeditated?, entirely unethical (and newsflash for you: entirely wrong by law).
Posted by: vinca at February 7, 2009 10:44 AM
This is a classic example of real estate "ethics". It is not the first time where I have seen ethics be corrupted by what is legal.
You don't legally have to give your room mate anything. You could claim you let them stay for a couple weeks and they over stayed their welcome. You could sue them for trespassing. You could steal all her stuff and change the locks. Let her try to fight it in court (and all the expenses that would go with that).
I was told by a broker that I would get some money for work I did on a rental. When it came time to pay up he not only didn't pay but he denied ever agreeing to it. Because I never got it in writing he knew I could never legally hold him to it. In his eyes he remained a law abiding citizen, which technically he was.
Real estate temps people to think that as long as they are legal they are also morally correct. But it is so easy to be a complete scumbag crook and yet never break a law.
What is harder is to be morally correct in spite of any legal loopholes or short term monetary gain. But long term it is a no brainer IMHO. End of sermon.
Posted by: gennaro at February 7, 2009 11:18 AM
Please ignore all of Gennaro's advice. The second paragraph advises you to commit a number of crimes - illegal eviction, petty larceny, perjury.
Could you clarify why you wouldn't return your roommate's contribution to the original deposit (last month's rent and security)? Otherwise the decent thing is to return to her.
Posted by: Putnamdenizen at February 7, 2009 2:35 PM
Uh Putnamdenizen, I was making the exact opposite point through irony and counter example.
Posted by: gennaro at February 7, 2009 5:25 PM
Great. But as I have learned irony unless really really obvious doesn't shine through on the internet. Especially when combined with your story afterwards. Of course, it is always possible i am just dense. (Shush!)
Still waiting to hear what the heck the original poster was envisioning.
Posted by: Putnamdenizen at February 7, 2009 7:20 PM
Something I rarely do, but here goes,
FREE LEGAL ADVICE FROM AN ACTUAL ATTORNEY HERE:
GIVE THE MONEY BACK!!! Why would you not want to give it back? Let's say that she caused some damage to the apartment. Unless and until your landlord assesses the damages and makes you pay for it, you have no actual damages and therefore no reason to withhold her security deposit. As for the last month's rent, you have no reason to withhold that unless she leaves without giving you the requisite 30 days notice, which you have already admitted that she gave you (by agreeing to stay until the end of Feb.) So, again, the free legal advice is GIVE THE MONEY BACK!!! (Unless of course you like being dragged into small claims court and wasting countless hours there. Fun times for all. NOT!) The agreement not being in writing means nothing. Courts enforce oral contracts all the time. All s/he would need to show is the cancelled checks/money order stubs for the deposit and last month's rent and your *ss is fried.
Posted by: InsertSnappyNameHere at February 7, 2009 9:28 PM
Here is a different point of view.
If you want to make a clean break from your roomate give back the security. If you don't you will be continuing the relationship. Once the money is given to the roomate you will never hear from that person again. End of relationship.
Posted by: Ysabelle at February 8, 2009 12:41 AM
PS
When the shit goes down you better be ready
Posted by: Ysabelle at February 8, 2009 12:46 AM
Why should you give back the security deposit now when you has no idea whether you will get it back from the landlord? What if it comes time to move out and the landlord is shady and doesn't give you back the deposit? I think the fair thing to do is agree that you will give her back her pro rata share of whatever ultimately gets returned by the landlord. In the meantime, you shouldn't be expected to pay cash to your disappearing roomate and take the risk of maybe not being able to collect from the landlord.
Last month's rent is different. I would tell her that if you can find someone to take her place you will return the money right away. But if you were counting on the money to meet your own rent payments, why should you have to make her whole if you end up having to pay the entire rent bill?
In fact, if this person promised you she would be there through the entire lease and is now reneging, you should consider her to continue to owe her share of the lease as long as you aren't able to find a replacement for her.
Posted by: lechacal at February 8, 2009 4:53 PM
Insertsnappynamehere: Where did you come up with a 30-day notice requirement? Your post invents facts that don't exist, confuses some very basic legal points and fails to appreciate the difference between the original poster and the landlord. Are you really a practicing lawyer?
Posted by: lechacal at February 8, 2009 4:57 PM
And of course I mean "have", not "has". Changed the subject but not the verb. Damn hangover.
Posted by: lechacal at February 8, 2009 5:00 PM
l, a hangover at 5PM? Some party!
Posted by: denton at February 8, 2009 5:57 PM
Lechacal: if bona fide's are up for scrutiny, we might need to know why you've
got a hangover at 5pm on a Sunday. That aside, I suggest you familiarize yourself with RPL §232.a-c. Outside NYC, for month-to-month tenancies, both landlord and roommate are required to give 30 days notice in a specified fashion. Inside NYC, that obtains to the landlord. Without the roommate's signature on a lease, OP must abide by the rules that govern an owner and subtenant may be entitled to damages. (OP is prime tenant, and roommate is subtenant). Roommate reneging? Please…try reframing that once your hangover's gone.
Posted by: vinca at February 8, 2009 6:36 PM
vinca, without getting too deep into a lawyers' discussion, why do you assume the original subtenancy was month to month? I appreciate the legal position if that is the case.
Denton - It might have been an exaggeration to call it a hangover. More like sleep deprivation after being out a bit late with friends last night with morning duty this morning with the kids.
Posted by: lechacal at February 8, 2009 8:59 PM
Lechacal:
1. Yes, I am a practicing attorney. If I wasn't, I would not have prefaced my statement with "FREE LEGAL ADVICE FROM AN ACTUAL ATTORNEY HERE." In fact, I'm a practicing attorney who has dealt with these same issues more times than you have typed your own name. Are YOU an attorney?
2. It is basic L&T law in NY that when no written lease exists (as the OP admits because the roommate is not on the lease) the terms of the tenancy is automatically month to month. Month to month tenancies, when broken by either the landlord or the tenant, require 30 days notice. Feel free to read up on NY L&T law and see it for yourself.
3. I am not confusing the OP and the landlord. As stated, the roomie is not on the lease. Therefore the no relationship exists between the roomie and the actual landlord of the property. The roomie paid the deposit and last month's rent to the OP. In this situation, the law will look at the OP as the landlord and it is the OP's responsibility to return the subject monies.
4. No facts were invented in my post. The OP failed to give a reason as to why he/she would want to withhold the monies. I simply presented a few scenarios that may reflect his/her reasoning and provided the likely outcome accordingly.
Before you try questioning my credentials, you might consider doing a little research on what you are talking about instead of pulling things out of your ass.
Posted by: InsertSnappyNameHere at February 8, 2009 9:40 PM
Lechacal: Was about to post, but Snappy's said it far better than me. In OP's words "However she is not on the lease…" Lease in OP's name alone, no sublease,
de facto month-to-month. As you know, even assuming landlord consent for roommate, the tenant remains liable for the performance of tenant’s obligations under lease. Just my opinion, not a legal opinion (not a lawyer, nor do I play one on Brownstoner).
Posted by: vinca at February 8, 2009 10:00 PM
Personal experience here: In my old building a tenant on the 3rd floor rented a room out to a guy who became very unreliable. He was not on the lease. After 2 months of no rent, she changed the locks on the doors and he took her to court. He won, because even though he wasn't on the lease, he had no signed agreement with the tenant (friend of a friend), and he hadn't paid rent, she didn't give him notice. He had to be allowed back in and he stayed until she gave him an official 30 days notice letter. And she had to pay him money.
I would listen to snappy's advice- ,OP- you got your extra month, and the security deposit was paid to you, not the landlord. Unless you have a signed agreement with your roommate, you're in a tough position- and even then, your roommate leaving is no reason for bad behavior.
Posted by: bxgrl at February 9, 2009 9:55 AM
Snappyname: Again, why do you assume that no term was agreed in the original sublease? If it's less than a year no writing is required. You are assuming very important facts.
Posted by: lechacal at February 9, 2009 10:08 AM
I should rephrase in a more deferential manner as real estate law is for me something that exists only in a distant fuzzy memory (I do securities/ M&A/ banking/ corporate): Snappy, can you point me to the rule that if there is no writing a subtenancy is automatically month to month - even if the parties agreed orally that the the subtanancy was for some other period of less than a year? If that rule exists, then I apologize and retract my objection to your legal analysis (assuming that their arrangement was oral).
In any event the OP just said that her roomate is not on the lease. She never said there isn't some other written evidence of their arrangement, and she never told us what their arrangement was. It strikes me that you are being sloppy with the facts.
Posted by: lechacal at February 9, 2009 10:17 AM
Lechacal, let's just end this argument and ask the OP.
Ninanoe5: Did you have a written agreement with your roomie or was it oral? How long was she supposed to stay?
Posted by: InsertSnappyNameHere at February 9, 2009 10:31 AM
Agreed. Well OP, what do you have to say for yourself?
Posted by: lechacal at February 9, 2009 10:36 AM
I love watching lawyers...
Posted by: vanburenproud at February 9, 2009 2:48 PM
Hey there, I've had many revolving room-mates over the years. I always gave back their security, and just got the "new" security from the new room-mate. I wrote a check from my account for the departing person and had the new person write me a check, to avoid bothering the landlord. It's only fair that she gives you a month's notice, and if she hasn't trashed anything, it's only fair to give back the security. Does that address your question?
Posted by: meerkatz at February 11, 2009 4:30 PM
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