Gave partial security deposit, didn't sign lease, check has been cashed. Can I get it back?
February 7, 2012 9:30 AM   Subscribe

Gave partial security deposit, didn't sign lease, check has been cashed. Can I get it back?

I've been checking out new places to rent. Last Friday Feb 3rd, I visited a place and filled out an application the same night. I put the application and a $100 security deposit in the potential landlord's mailbox around 10:00 PM Sat Feb 4th. When I did this, I noticed there was some smoke in the area. I'm really sensitive to smoke, but I left the application and check inside the mailbox.

On Sunday Feb 5th, I viewed another place that doesn't have smokers within the unit. Sunday night: I emailed the potential landlord I had submitted the app + check to, and was honest about my situation. I told her that I was sensitive to smoke and asked if there were smokers in her unit. I also disclosed that I was looking at another place and suggested that she continue showing the place to others.

I re-read the contract. I stupidly missed the lines that say:

"statements above set forth are true; however, should any statement made above be a misrepresentation or not a true statement of facts, all of the deposit will be retained to offset the agent's cost, time, and effort in processing my application. I hereby deposit $___________ as earnest money to be refunded to me if this application is not accepted in 3 business banking days. Upon acceptance, this deposit shall be retained as part of the security deposit."

I'm not actually sure if she has processed my application. She hasn't gotten back to me since that email on Sunday night. I'm thinking that I let her know about my sensitivity to smoke within 24 hours of giving her my application and check...

BTW, I already checked out this thread, but my situation doesn't involve a whole month's rent.

Anyway, she has cashed my check. If I'm not wrong, the clause above only says that she can only retain my deposit if I lied...right? I feel like I gave her enough disclosure after I gave her my money. So can I get it back?
posted by mild deer to Law & Government (11 answers total)
Without seeing the whole contract, it's impossible to say. However, I understand 'earnest money' to be a deposit that is only refundable if the seller/landlord does not accept the application. Generally, the earnest money is given to the seller/landlord if the buyer backs out for any reason.

The 'misrepresentations' line is saying that the earnest money will not be refunded if the landlord backs out due to a lie/misrepresentation on the applicant's part. It does not preclude the landlord keeping the deposit because the buyer backed out.
posted by muddgirl at 9:36 AM on February 7, 2012

Or really, if it's worth fighting for $100, find a tenant's rights lawyer in your area to review the contract you signed and any applicable local tenants rights laws. Sometimes there will be non-profit tenants rights organizations which can provide free or low-cost advice/assistance.
posted by muddgirl at 9:37 AM on February 7, 2012

Probably not -- There are two sentences there: Sentence 1 says they can keep it if they reject you because you lie (which, if the contract says anything about you intending to live there, you did), and Sentence 2 says that if #1 is not applicable, they keep it unless they turn you down -- which they have 3 days to decide if they're going to do (at which point it's too late for them to turn you down). The whole point of earnest money is you saying "I'm serious about this, I'm signing a contract and moving on" -- which means generally if you are the one turning it down after paying the earnest money, you lose the earnest money.

That said, you may be able to fight it if they don't just hand it back, but at the very least you're looking at small claims court filing fees, and you're likely in the wrong.
posted by brainmouse at 9:37 AM on February 7, 2012

If I'm not wrong, the clause above only says that she can only retain my deposit if I lied...right?

It sounds like the firs question that would be asked is "If you're so sensitive to smoke, why didn't you ask about smokers before filled out an application and gave her a deposit check?" To bring it up afterwards looks suspicious, no matter what the truth is.
posted by Brandon Blatcher at 9:41 AM on February 7, 2012

Security deposit's in case you back out; it demonstrates the seriousness with which you're taking interest in the place. You're backing out. Not gonna get that money back
posted by MangyCarface at 9:44 AM on February 7, 2012 [1 favorite]

I agree with MangyCarface. I highly doubt you're going to get your money back, unless the landlord takes pity on you, which she's under no obligation to do.
posted by ThePinkSuperhero at 9:47 AM on February 7, 2012

Doubtful. The clause is to protect the landlord from you, not vice versa.

Also, because this is a bit unclear to me, did you actually ask for your money back and withdraw your application?
posted by sm1tten at 10:48 AM on February 7, 2012

Hi everyone, thanks for your responses. I'm having a huge "D'OH" moment. Ah, regret.

I have not asked for my money back and I didn't withdraw my application, mostly out of fear (losing money), shame (how the potential LL now sees me, ie, how I didn't ask about the smoking question), and frustration/confusion (not fully understanding what I signed). This is my first time finding an apartment on my own.

posted by mild deer at 11:55 AM on February 7, 2012

I know that this is a long shot, but...

Does anyone have suggestions on how best to approach her about getting my money back?

I know she doesn't have to give back my money (and I should have been more cautious). I will accept the consequences of losing my $100.
posted by mild deer at 11:59 AM on February 7, 2012

You can ask nicely, explaining your confusion and (sorry) naivete. She might be sympathetic and give it back. It sounds like she's not really under any legal (or even moral) obligation to do so, but she might, anyhow.
posted by JMOZ at 1:06 PM on February 7, 2012

Does anyone have suggestions on how best to approach her about getting my money back?

Seriously, just ask. Tell her that you were interested, however the smoke issue was bad for your health and after thinking about it overnight, you've located more suitable accommodations for your particular sensitivity.

A reasonable person would give you your money back, and an unreasonable one wouldn't regardless of what you say. There's no downside to just being honest.
posted by Rodrigo Lamaitre at 2:30 PM on February 7, 2012 [1 favorite]

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