Am I out my security deposit?
November 29, 2011 7:29 AM Subscribe
NYC subletting question - paid a security deposit to the leasee, with the understanding that their sec. deposit was still in the escrow account tied to the apartment. Now owner claims we need to pay up again. Help?
August 2010
- SO and I find an apartment to sublet until the lease ends (Nov 2011), at which point we are told we will be presented with a new lease to sign
- We move in on on August 15th, having paid prorated rent for the month and a security deposit worth one month's rent to the tenants. The agreement is that the security deposit that they put down on the apartment when they moved in will remain in the owner's escrow account, tied to the apartment, and the security deposit we paid the tenants is just reimbursing them for that. We sign a typed up statement to this effect.
November 2010
- landlord mentions in passing that he will get us a lease to sign, which never happens. We don't push it, we like being on a month-to-month basis.
November 2011
- landlord knocks on door, hands over a lease. Lease requests a security deposit. We say "no, we already paid that." He says "that has nothing to do with me."
- landlord also mentions that we are responsible for putting a hole in the bedroom door, because he replaced the door right before we moved in. This is not true. The door was messed up when we moved in. We didn't take photos, though, and I am grudgingly okay with replacing the door (it'll be less than $100)
Complications
- The "lease" we signed when we moved in is nowhere to be found. The only proof we have that we paid the tenants a security deposit is an e-mailed "receipt".
So, as I see it, two things could have happened here: a) the previous tenants collected their security deposit, and collected one from us as well, scamming us and taking off (they have not responded to any communications from us) or b) the owner still has the original security deposit, and is looking to pocket that and pressure us to give him another one. I am leaning towards b) because it doesn't make any sense to me that in Nov 2010, the lease ended, he gave the original tenants their security deposit back without doing an inspection of the apartment (thus seeing the broken door, which they would still have been responsible for since it was still their lease), then didn't immediately turn to us to sign a new lease and get a new security deposit. Since security deposits are required to be held in an escrow account, is there any way of proving that the money is still in there, or what date it was removed?
MeFites, can you give me some direction about how to deal with this situation? If the answer is "deal with it, you didn't handle this correctly from the get-go," that's okay. I get it, and I am done beating myself up about the things I should have done differently. We are supposed to speak with the landlord tonight about the situation and I'd like to be prepared. Thank you in advance. This is not an insignificant amount of money to us and I still feel sick thinking I am being scammed.
August 2010
- SO and I find an apartment to sublet until the lease ends (Nov 2011), at which point we are told we will be presented with a new lease to sign
- We move in on on August 15th, having paid prorated rent for the month and a security deposit worth one month's rent to the tenants. The agreement is that the security deposit that they put down on the apartment when they moved in will remain in the owner's escrow account, tied to the apartment, and the security deposit we paid the tenants is just reimbursing them for that. We sign a typed up statement to this effect.
November 2010
- landlord mentions in passing that he will get us a lease to sign, which never happens. We don't push it, we like being on a month-to-month basis.
November 2011
- landlord knocks on door, hands over a lease. Lease requests a security deposit. We say "no, we already paid that." He says "that has nothing to do with me."
- landlord also mentions that we are responsible for putting a hole in the bedroom door, because he replaced the door right before we moved in. This is not true. The door was messed up when we moved in. We didn't take photos, though, and I am grudgingly okay with replacing the door (it'll be less than $100)
Complications
- The "lease" we signed when we moved in is nowhere to be found. The only proof we have that we paid the tenants a security deposit is an e-mailed "receipt".
So, as I see it, two things could have happened here: a) the previous tenants collected their security deposit, and collected one from us as well, scamming us and taking off (they have not responded to any communications from us) or b) the owner still has the original security deposit, and is looking to pocket that and pressure us to give him another one. I am leaning towards b) because it doesn't make any sense to me that in Nov 2010, the lease ended, he gave the original tenants their security deposit back without doing an inspection of the apartment (thus seeing the broken door, which they would still have been responsible for since it was still their lease), then didn't immediately turn to us to sign a new lease and get a new security deposit. Since security deposits are required to be held in an escrow account, is there any way of proving that the money is still in there, or what date it was removed?
MeFites, can you give me some direction about how to deal with this situation? If the answer is "deal with it, you didn't handle this correctly from the get-go," that's okay. I get it, and I am done beating myself up about the things I should have done differently. We are supposed to speak with the landlord tonight about the situation and I'd like to be prepared. Thank you in advance. This is not an insignificant amount of money to us and I still feel sick thinking I am being scammed.
Can you contact the previous tenants now and ask whether they received their initial security deposit back from the landlord? Ask nicely, don't accuse them of doubling up, because in the event you go to court over this, they will be your only witnesses to the effect that you paid someone a security deposit.
Landlords, in my experience, can be willfully dense and formalistic when they think it will net them extra cash. "But that was the old tenants' security deposit, now I need one from you," is a kind of herp derp reasoning very particular to NYC landlords. I'd push back on it. He said, literally, "That has nothing to do with me?" Get him to nail down, in writing, whether or not he is or should be in possession of a security deposit which was paid in relation to the unit you are currently renting. If he isn't, get him to say why not.
Someone is getting a windfall here, you just need to find out who and shame the hell out of them. Be a strong advocate for yourself.
posted by dixiecupdrinking at 7:41 AM on November 29, 2011 [1 favorite]
Landlords, in my experience, can be willfully dense and formalistic when they think it will net them extra cash. "But that was the old tenants' security deposit, now I need one from you," is a kind of herp derp reasoning very particular to NYC landlords. I'd push back on it. He said, literally, "That has nothing to do with me?" Get him to nail down, in writing, whether or not he is or should be in possession of a security deposit which was paid in relation to the unit you are currently renting. If he isn't, get him to say why not.
Someone is getting a windfall here, you just need to find out who and shame the hell out of them. Be a strong advocate for yourself.
posted by dixiecupdrinking at 7:41 AM on November 29, 2011 [1 favorite]
From a legal standpoint, especially if it is in escrow in the previous tenant's name, the landlord has to return whatever is left of the deposit to the person whose name is on the account. Presumably, the old tenant would return to you what they got from him. Makes sense to me. Ask him if he returned the deposit to the old tenant and where he sent it so you can contact them.
posted by JohnnyGunn at 7:54 AM on November 29, 2011
posted by JohnnyGunn at 7:54 AM on November 29, 2011
Response by poster: Unfortunately, SO kinda popped off and wrote a strongly worded email to the previous tenants the evening we found out about all this. Unsurprisingly, they've haven't responded - to that email or the subsequent apologetic, pleaded email. We're trying to find a contact # but have been unsucessful so far.
Thanks!! It makes me feel so much better to have some concrete suggestions about what to do and what to say
posted by coupdefoudre at 8:05 AM on November 29, 2011
Thanks!! It makes me feel so much better to have some concrete suggestions about what to do and what to say
posted by coupdefoudre at 8:05 AM on November 29, 2011
Even if you have proof that you gave the money to the previous tenant, there is no proof that the tenant gave that money to the landlord. He can still make you cough up the difference.
Where is the original tenant? Do you pay rent to the tenant or to the landlord?
It might be that you paid a heavy tuition if the person you sublet the apartment from has scammed you and ran off.
I agree with JohnnyGunn about asking the landlord about the previous tenant so that you can contact them.
The main and unfortunate thing is, subleasing an apartment is not truly legal in NYC unless the tenant has a four year lease and they have leased it to you after living there for two years, OR if the previous tenant has permission from the landlord to do so and the lease would be signed by the landlord as well. So even if you found that lease you got from the previous tenant, it may not valid.
You may want to negotiate with the landlord and see what can be done. He may be sympathetic to what happened to you.
posted by Yellow at 8:12 AM on November 29, 2011
Where is the original tenant? Do you pay rent to the tenant or to the landlord?
It might be that you paid a heavy tuition if the person you sublet the apartment from has scammed you and ran off.
I agree with JohnnyGunn about asking the landlord about the previous tenant so that you can contact them.
The main and unfortunate thing is, subleasing an apartment is not truly legal in NYC unless the tenant has a four year lease and they have leased it to you after living there for two years, OR if the previous tenant has permission from the landlord to do so and the lease would be signed by the landlord as well. So even if you found that lease you got from the previous tenant, it may not valid.
You may want to negotiate with the landlord and see what can be done. He may be sympathetic to what happened to you.
posted by Yellow at 8:12 AM on November 29, 2011
Likely not what you want to hear, but: Paying a security deposit to the lessee makes no sense, especially since there was apparently no written agreement documenting it.
Your landlord is right to insist on a security deposit payable to him by you as a condition for signing a lease with you. That you paid a security deposit to the prior lessee is irrelevant.
posted by dfriedman at 8:13 AM on November 29, 2011 [1 favorite]
Your landlord is right to insist on a security deposit payable to him by you as a condition for signing a lease with you. That you paid a security deposit to the prior lessee is irrelevant.
posted by dfriedman at 8:13 AM on November 29, 2011 [1 favorite]
The agreement is that the security deposit that they put down on the apartment when they moved in will remain in the owner's escrow account, tied to the apartment, and the security deposit we paid the tenants is just reimbursing them for that.
...Legally, I don't see how this would work. According to my own NYS landlord's handbook, the security deposit goes with the tenant, not with the apartment (as is par for the course just about everywhere). Lease up --> tenant decamps --> landlord hands over security deposit. Something's awry here.
posted by thomas j wise at 8:25 AM on November 29, 2011
...Legally, I don't see how this would work. According to my own NYS landlord's handbook, the security deposit goes with the tenant, not with the apartment (as is par for the course just about everywhere). Lease up --> tenant decamps --> landlord hands over security deposit. Something's awry here.
posted by thomas j wise at 8:25 AM on November 29, 2011
So the landlord is correct, your beef is not with him. It's with the previous tenants. I ask him if he returned the security deposit to them but otherwise you need to pay the landlord his security deposit and chase down the previous tenants in small claims court to recover the rest.
posted by bitdamaged at 8:39 AM on November 29, 2011
posted by bitdamaged at 8:39 AM on November 29, 2011
Ask him if he returned the deposit to the old tenant and where he sent it so you can contact them.
This, please. When the landlord says it has nothing to do with him, that is what you ask. "Did you give the previous tenants their deposit back and/or keep some of it for repairs? They are the ones who damaged the door." If he says that he did return the money, tell him that you'd appreciate a letter from him that states he did that and asks for your deposit so you can get back the $$ from the previous tenants. Then if they continue to ignore you, file suit against them in small claims court.
If he kept the deposit, ask that he use some of that money to fix the door and any other problems that existed when you moved in. Again, you get documentation from him to this effect and use it in court. If the previous tenants claim he did not pay them, then you take that back to him.
What happened with the deposit may not be legal, but that doesn't necessarily mean you are out of luck.
posted by soelo at 8:44 AM on November 29, 2011
This, please. When the landlord says it has nothing to do with him, that is what you ask. "Did you give the previous tenants their deposit back and/or keep some of it for repairs? They are the ones who damaged the door." If he says that he did return the money, tell him that you'd appreciate a letter from him that states he did that and asks for your deposit so you can get back the $$ from the previous tenants. Then if they continue to ignore you, file suit against them in small claims court.
If he kept the deposit, ask that he use some of that money to fix the door and any other problems that existed when you moved in. Again, you get documentation from him to this effect and use it in court. If the previous tenants claim he did not pay them, then you take that back to him.
What happened with the deposit may not be legal, but that doesn't necessarily mean you are out of luck.
posted by soelo at 8:44 AM on November 29, 2011
(As an addendum, I think the other folks here are on point with this, and I'd like to highlight the silver lining — if you do need to go to court, it is much better to be suing some other tenant than your landlord. The risks of having a housing court history, as far as your future ability to rent in NYC, mean that kind of litigation is rarely worthwhile for something like this.)
posted by dixiecupdrinking at 2:05 PM on November 29, 2011
posted by dixiecupdrinking at 2:05 PM on November 29, 2011
Response by poster: Am I allowed a follow-up question? Hope so -
Since it looks like it's going to have to be small claims court against the previous tenants, is a receipt, typed up by previous tenant in Word, that specifies that it is a receipt for a security deposit, date, amount, names, address, etc, going to hold any water? It's not signed. It looks like something that I could have easily forged (I didn't, just saying it's not very official-looking).
posted by coupdefoudre at 2:26 PM on November 29, 2011
Since it looks like it's going to have to be small claims court against the previous tenants, is a receipt, typed up by previous tenant in Word, that specifies that it is a receipt for a security deposit, date, amount, names, address, etc, going to hold any water? It's not signed. It looks like something that I could have easily forged (I didn't, just saying it's not very official-looking).
posted by coupdefoudre at 2:26 PM on November 29, 2011
Best answer: Well that's kind of getting into legal advice-y territory. (And FTR IANAL.) But if you sue them, they'll have to come to court, or else you'll get a default judgment against them. When they show up, they'll testify about what happened and you should be able to cross-examine them. Even if the receipt is of limited value in itself, it could help in that context. But at the end of the day if they're going to lie, they're going to lie.
Really, though, I would try to communicate with them a bit more before filing a claim. First of all, they'll need to be served, which means the court or you will have to find them, so if their current whereabouts are unknown this will be a problem. Second, the process is likely to be a pain in the ass and may drag on for months, especially because NY courts have cut way back on hours for small claims lately. Just the threat of litigation would make most reasonable people cough up the money, especially if in fact they did receive payment from both you and their landlord.
Here is a helpful guide to small claims court in NYS. If you can locate these folks and decide to go this route, I would personally recommend mediation as an initial matter; there is some info and a couple relevant links about it on this page.
posted by dixiecupdrinking at 2:52 PM on November 29, 2011
Really, though, I would try to communicate with them a bit more before filing a claim. First of all, they'll need to be served, which means the court or you will have to find them, so if their current whereabouts are unknown this will be a problem. Second, the process is likely to be a pain in the ass and may drag on for months, especially because NY courts have cut way back on hours for small claims lately. Just the threat of litigation would make most reasonable people cough up the money, especially if in fact they did receive payment from both you and their landlord.
Here is a helpful guide to small claims court in NYS. If you can locate these folks and decide to go this route, I would personally recommend mediation as an initial matter; there is some info and a couple relevant links about it on this page.
posted by dixiecupdrinking at 2:52 PM on November 29, 2011
Since it looks like it's going to have to be small claims court against the previous tenants, is a receipt, typed up by previous tenant in Word, that specifies that it is a receipt for a security deposit, date, amount, names, address, etc, going to hold any water? It's not signed.
Hopefully you have a canceled check for the deposit amount? You should be able to show some consistent payment for X number of months plus Y deposit. They'd kind of have to explain why you made an extra payment.
posted by bitdamaged at 5:00 PM on November 29, 2011
Hopefully you have a canceled check for the deposit amount? You should be able to show some consistent payment for X number of months plus Y deposit. They'd kind of have to explain why you made an extra payment.
posted by bitdamaged at 5:00 PM on November 29, 2011
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posted by Think_Long at 7:35 AM on November 29, 2011