This Is Why I Should Do Things In Writing
May 28, 2013 8:52 AM Subscribe
Dear Mefi Internet Jury: Am I right to withhold a roommate's security deposit?
The details: 2 bedroom in New York. I am sole leaseholder, and rent out the second bedroom to people. Typically the security deposit is collected to secure rent in case the roommate needs to leave before 30 days is up.
The roommate: announced they would move out only 2 weeks before the end of the month. Still hasn't paid one month of utilities.
The complicating factors -
The question: would that make me evil, or am I within my rights to act thusly?
The details: 2 bedroom in New York. I am sole leaseholder, and rent out the second bedroom to people. Typically the security deposit is collected to secure rent in case the roommate needs to leave before 30 days is up.
The roommate: announced they would move out only 2 weeks before the end of the month. Still hasn't paid one month of utilities.
The complicating factors -
We never formally stated that the security deposit would be withheld if they gave me less than 30 days' notice before moving out.The exiting roommate has asked after the security deposit "if you do find someone." I told them that while I have not found someone yet, I would let them know if I did. However, I am honestly considering not paying them even if I do find someone.
I also stupidly got into the habit of having each new incoming roommate pay the exiting roommate the deposit, so I never actually got the money. It "seemed easier."
The question: would that make me evil, or am I within my rights to act thusly?
You did actually get the deposit, from the original roommate. And, what deanc said.
posted by txmon at 8:58 AM on May 28, 2013 [4 favorites]
posted by txmon at 8:58 AM on May 28, 2013 [4 favorites]
Ethically speaking, you should only withhold the security deposit for actual damages. Let this be your guiding principle. You are also ethically obligated to make reasonable attempts to replace your roommate as well (i.e., don't sit around for a couple of weeks just to ding the deposit).
This means the utilities bill is fair game, as well as a pro rata amount for any time the second bedroom is left vacant, despite your efforts to fill it.
posted by BobbyVan at 8:58 AM on May 28, 2013
This means the utilities bill is fair game, as well as a pro rata amount for any time the second bedroom is left vacant, despite your efforts to fill it.
posted by BobbyVan at 8:58 AM on May 28, 2013
However, I am honestly considering not paying them even if I do find someone.
Umm, why?
We never formally stated that the security deposit would be withheld if they gave me less than 30 days' notice before moving out.
So...you don't have a leg to stand on. The security deposit is for damage to the room.
Also, this doesn't make sense:
I also stupidly got into the habit of having each new incoming roommate pay the exiting roommate the deposit, so I never actually got the money. It "seemed easier."
Presumably, you got it from the first person to rent the room. No?
posted by Salamander at 8:59 AM on May 28, 2013 [4 favorites]
Umm, why?
We never formally stated that the security deposit would be withheld if they gave me less than 30 days' notice before moving out.
So...you don't have a leg to stand on. The security deposit is for damage to the room.
Also, this doesn't make sense:
I also stupidly got into the habit of having each new incoming roommate pay the exiting roommate the deposit, so I never actually got the money. It "seemed easier."
Presumably, you got it from the first person to rent the room. No?
posted by Salamander at 8:59 AM on May 28, 2013 [4 favorites]
You pay them the security deposit back
-minus-
cost of outstanding bills
-minus-
prorated cost of the remainder of the 30 days unless you find someone to occupy it before then
-minus-
fair cost for any physical room damage.
You type this into an itemized list and send it with the money.
It is fair to wait until the 30 day period is up to send it, because that way you know how much to pay back.
It is not fair to withhold it just because you're pissed.
In the future, all transactions should go through you, not the roommate, and make sure you put everything in writing.
posted by phunniemee at 9:02 AM on May 28, 2013 [5 favorites]
-minus-
cost of outstanding bills
-minus-
prorated cost of the remainder of the 30 days unless you find someone to occupy it before then
-minus-
fair cost for any physical room damage.
You type this into an itemized list and send it with the money.
It is fair to wait until the 30 day period is up to send it, because that way you know how much to pay back.
It is not fair to withhold it just because you're pissed.
In the future, all transactions should go through you, not the roommate, and make sure you put everything in writing.
posted by phunniemee at 9:02 AM on May 28, 2013 [5 favorites]
Your roommate was inconsiderate, and certainly owes you payment for the utilities, but it would be spiteful to keep the deposit if you are able to find a paying renter.
posted by Meg_Murry at 9:02 AM on May 28, 2013 [1 favorite]
posted by Meg_Murry at 9:02 AM on May 28, 2013 [1 favorite]
IAAL, IANYL, TINLA. I do a fair amount of landlord tenant work.
If NY's model landlord-tenant act is anything like the model act, you have to be very clear about the security deposit and what it is for. Beyond that, you probably have to pay it back within a relatively short period after the tenant moves out unless you affirm within that same period your reasons for withholding all or part of the security deposit.
Based on your question, I really do not know what your security deposit is for. I do not understand "the security deposit is collected to secure rent in case the roommate needs to leave before 30 days is up."
In any event, if there is no debt outstanding or damages to the premises (beyond wear and tear) when the roommate moves out, I cannot imagine what cause you would have for withholding any portion of the security deposit. Morally, I think you should return it. Legally, I think you have probably violated the landlord tenant act on a few scores. (you absolutely need to stop this business of the tenants' shuffling the security deposit amongst themselves)
From now on, have a written lease for your tenants. I am sure your state bar association has a model form.
posted by Tanizaki at 9:02 AM on May 28, 2013 [8 favorites]
If NY's model landlord-tenant act is anything like the model act, you have to be very clear about the security deposit and what it is for. Beyond that, you probably have to pay it back within a relatively short period after the tenant moves out unless you affirm within that same period your reasons for withholding all or part of the security deposit.
Based on your question, I really do not know what your security deposit is for. I do not understand "the security deposit is collected to secure rent in case the roommate needs to leave before 30 days is up."
In any event, if there is no debt outstanding or damages to the premises (beyond wear and tear) when the roommate moves out, I cannot imagine what cause you would have for withholding any portion of the security deposit. Morally, I think you should return it. Legally, I think you have probably violated the landlord tenant act on a few scores. (you absolutely need to stop this business of the tenants' shuffling the security deposit amongst themselves)
From now on, have a written lease for your tenants. I am sure your state bar association has a model form.
posted by Tanizaki at 9:02 AM on May 28, 2013 [8 favorites]
For all intents and purposes, you are the landlord to your roommates.
You need to start doing things on a professional basis so that you don't end up in a jam.
Understand what you rights and obligations are. As for deposit, you should have a special, interest bearing savings account for that. Also, if you intend NOT to return her deposit, you need to send her a certified letter explaining why, within 30 days of her leaving.
As the sole lease-holder and the landlord to your roommates, you need to know exactly what is required of you or you can end up in a world of hurt.
I wouldn't tangle with NYC housing court for all the tea in China.
posted by Ruthless Bunny at 9:04 AM on May 28, 2013 [1 favorite]
You need to start doing things on a professional basis so that you don't end up in a jam.
Understand what you rights and obligations are. As for deposit, you should have a special, interest bearing savings account for that. Also, if you intend NOT to return her deposit, you need to send her a certified letter explaining why, within 30 days of her leaving.
As the sole lease-holder and the landlord to your roommates, you need to know exactly what is required of you or you can end up in a world of hurt.
I wouldn't tangle with NYC housing court for all the tea in China.
posted by Ruthless Bunny at 9:04 AM on May 28, 2013 [1 favorite]
Yes, it makes you evil. Basically, social norms of roommate relations dictate that if you need to move, then as long as you find someone to take over the room with no break in the rent payments, "no harm, no foul."
Just for the record, this seems to be a misread by deanc -- renter is asking if everything will be ok if *landlord* finds somebody in time, not if s/he finds a replacement in advance, resulting in "no harm, no foul." If I have to scramble to find a filler because you left early, there is some harm, whether or not you think docking a deposit is the right recourse.
posted by acm at 9:09 AM on May 28, 2013 [1 favorite]
Just for the record, this seems to be a misread by deanc -- renter is asking if everything will be ok if *landlord* finds somebody in time, not if s/he finds a replacement in advance, resulting in "no harm, no foul." If I have to scramble to find a filler because you left early, there is some harm, whether or not you think docking a deposit is the right recourse.
posted by acm at 9:09 AM on May 28, 2013 [1 favorite]
Yes, you must give your former roommate her deposit back. You may withhold any money she owes you for other things, I think that's fair. I wouldn't be scared of housing court or anything (like she could get that kind of attention for something small like this), but it is the right thing to do.
posted by ThePinkSuperhero at 9:14 AM on May 28, 2013 [1 favorite]
posted by ThePinkSuperhero at 9:14 AM on May 28, 2013 [1 favorite]
Just speaking personally...in practice I would keep the deposit if the roommate gave me LESS than 1 week's notice (6, 5, 4 days...) AND I couldn't find someone.
2 weeks' notice sucks, but it's not the absolute worst thing in the world, especially this time of year. One can interview a hell of a lot of candidates in 2 weeks.
posted by skbw at 9:51 AM on May 28, 2013 [1 favorite]
2 weeks' notice sucks, but it's not the absolute worst thing in the world, especially this time of year. One can interview a hell of a lot of candidates in 2 weeks.
posted by skbw at 9:51 AM on May 28, 2013 [1 favorite]
You should make a good faith effort to fill the room, but if you cannot, I think it's fair to keep pro-rated rent for any days you are not able to fill it for. (For instance, if you fill the room 1 week after this roommate moves out, you could keep 1 week's worth of rent.) Also totally fine to keep the deposit for unpaid utilities or any damage found on move-out.
Not cool to just randomly keep the deposit if you do end up finding someone else for the room.
Not sure if part of the issue is that this is a particularly bad couple of weeks for you to be interviewing potential new roommates? If that's the case, then it really sucks to have this sort of thing sprung on you, and I totally sympathize. In that case, I do not think it is unreasonable to ask soon-to-be-former roomie to do some of the legwork since they are moving out on short notice. For example, you could ask her to post the ad on Craigslist, read through initial emails, and forward you the ones that look promising. You don't want her to actually do the interviewing and selecting, because you'll be living with this person, but since this is a short time frame and you may understandably not have time to do a time-consuming roommate search RIGHT NOW with little notice, I don't think asking this person to do some of the legwork is unreasonable.
posted by rainbowbrite at 10:00 AM on May 28, 2013
Not cool to just randomly keep the deposit if you do end up finding someone else for the room.
Not sure if part of the issue is that this is a particularly bad couple of weeks for you to be interviewing potential new roommates? If that's the case, then it really sucks to have this sort of thing sprung on you, and I totally sympathize. In that case, I do not think it is unreasonable to ask soon-to-be-former roomie to do some of the legwork since they are moving out on short notice. For example, you could ask her to post the ad on Craigslist, read through initial emails, and forward you the ones that look promising. You don't want her to actually do the interviewing and selecting, because you'll be living with this person, but since this is a short time frame and you may understandably not have time to do a time-consuming roommate search RIGHT NOW with little notice, I don't think asking this person to do some of the legwork is unreasonable.
posted by rainbowbrite at 10:00 AM on May 28, 2013
In my area it wouldn't just be unethical, unkind, uncool or evil to keep the deposit in the circumstance you describe; it would be illegal, and you'd be on the hook for damages in some multiple of the amount you'd unlawfully kept. Even if you kept the deposit to cover rent lost because you couldn't quickly find a replacement, you'd still have to be able to demonstrate you'd actually made a good-faith effort to find someone. The deposit belongs to the tenant by default, and remains his unless you have a clear and demonstrable reason why it should become yours.
posted by jon1270 at 10:07 AM on May 28, 2013 [2 favorites]
posted by jon1270 at 10:07 AM on May 28, 2013 [2 favorites]
I strongly agree with Tanizaki/Ruthless Bunny/Seymour Zamboni. I practice a decent amount of LL/T law on behalf of low-income tenants (not in the US, so I can't speak to the law). I love love love when the landlord has acted unprofessionally by not having written agreements, and a paper trail, and all that. It's a sign that they're not going to be able to do the hearing properly either (and likely won't hire a professional to do it), and will start yelling at the hearing and then my client looks like the calm and reasonable one.
Not that you would do this, but it's absolutely worth spending a few hours sorting out what you would want for the next tenant. Model contracts exist, as Tanizaki says, and even without that a clear, written agreement is a good start.
In this instance (and again, not speaking as someone who knows the law in your area):
I think it's not evil for you to keep the utilities portion of the deposit.
I think you should (or should have, since presumably we're talking in the past) look for a new tenant. If you could have found an acceptable one in those two weeks, then I don't think it's fair of you to keep any of that deposit.
If it normally takes you a full month to get a tenant, and you hadn't in fact found one, then I think it's not evil for you to keep two weeks'.
I cannot see a situation where you should be entitled to more than two weeks' worth of deposit just for the move-out (maybe in combination with the rest, of course).
posted by Lemurrhea at 10:14 AM on May 28, 2013 [1 favorite]
Not that you would do this, but it's absolutely worth spending a few hours sorting out what you would want for the next tenant. Model contracts exist, as Tanizaki says, and even without that a clear, written agreement is a good start.
In this instance (and again, not speaking as someone who knows the law in your area):
I think it's not evil for you to keep the utilities portion of the deposit.
I think you should (or should have, since presumably we're talking in the past) look for a new tenant. If you could have found an acceptable one in those two weeks, then I don't think it's fair of you to keep any of that deposit.
If it normally takes you a full month to get a tenant, and you hadn't in fact found one, then I think it's not evil for you to keep two weeks'.
I cannot see a situation where you should be entitled to more than two weeks' worth of deposit just for the move-out (maybe in combination with the rest, of course).
posted by Lemurrhea at 10:14 AM on May 28, 2013 [1 favorite]
If you never formally agreed to the idea that they would forfeit their deposit if they left without 30 days notice, you're boned. Sorry. You can't suddenly decide "oh hey I get to keep your $800 for Reasons" without actually agreeing to something like that beforehand.
The return of their security deposit should have absolutely nothing to do with whether "you find someone" or not. Either you agreed to 30 days notice, they didn't do that, and they thus forfeit the deposit, or you didn't and they get the deposit back and it sucks to be you that you didn't actually keep the deposit.
posted by Sara C. at 10:56 AM on May 28, 2013
The return of their security deposit should have absolutely nothing to do with whether "you find someone" or not. Either you agreed to 30 days notice, they didn't do that, and they thus forfeit the deposit, or you didn't and they get the deposit back and it sucks to be you that you didn't actually keep the deposit.
posted by Sara C. at 10:56 AM on May 28, 2013
It is unclear from your post if you verbally agreed to a 30 days notice.
If you did and your roommate gave you only 2 weeks notice I think it is fair to ask them to help find a replacement (like suggested above: place ads, screen emails etc.). Should you find someone within those 2 weeks (with or without your roommates help is irrelevant) the deposit is to be returned MINUS what they owe you for utilities up to the point where they still lived in your place (possibly not just for last month but also for the first two weeks of this month?).
If you agreed to 30 days notice, they gave you only 14 days and you can not find any replacement despite honest efforts, it is fair to keep 2 weeks worth of rent money + what they owe you for utilities and return the remaining $.
If you did not agree to any specific length of notice the only money that is fair to keep is what they owe you for utilities.
I see no explanation in your post for keeping the whole deposit.
It sounds though as if you don't have enough money right now and are looking for an easy out ("I also stupidly got into the habit of having each new incoming roommate pay the exiting roommate the deposit, so I never actually got the money.").
Being broke is no reason to screw other people over.
posted by travelwithcats at 1:05 PM on May 28, 2013
If you did and your roommate gave you only 2 weeks notice I think it is fair to ask them to help find a replacement (like suggested above: place ads, screen emails etc.). Should you find someone within those 2 weeks (with or without your roommates help is irrelevant) the deposit is to be returned MINUS what they owe you for utilities up to the point where they still lived in your place (possibly not just for last month but also for the first two weeks of this month?).
If you agreed to 30 days notice, they gave you only 14 days and you can not find any replacement despite honest efforts, it is fair to keep 2 weeks worth of rent money + what they owe you for utilities and return the remaining $.
If you did not agree to any specific length of notice the only money that is fair to keep is what they owe you for utilities.
I see no explanation in your post for keeping the whole deposit.
It sounds though as if you don't have enough money right now and are looking for an easy out ("I also stupidly got into the habit of having each new incoming roommate pay the exiting roommate the deposit, so I never actually got the money.").
Being broke is no reason to screw other people over.
posted by travelwithcats at 1:05 PM on May 28, 2013
To state this very plainly...(and as i've said in other threads, i have a casual amount of experience with landlord/tenant law and codes both in my family having been landlords and in dealing with bullshit landlords)
How much was the deposit? because if it cost more than the cost of filing in small claims court and you were being an asshole about it i would have already filed against you on like... day 35 here.
And if you're not familiar with that process, it's VERY sided in favor of the tenant. The judge basically goes "Show me the proof that you had a reason to keep this deposit. Show me what specifically you spent it on, or how they cost you money by the place being vacant/any other reason"
Your response is essentially going to be "well, umm, uhhh...umm" especially if they're smart enough to pay the utilities via say, certified mail before they do this.
And at least around here, you owe MORE than the deposit(i think up to 2, maybe even 3x) if you lose in this situation as a bit of a slap to say "don't ever be an asshole like this again".
You are setting yourself up for a potential serious boning here.
And on a side note, what exactly did they do wrong here? At least where i am, requiring more than two weeks notice isn't even really legal. That's basically the standard. I've also heard the "two weeks notice" thing being the case in other states from various people. This reaction just feels seriously catty, and that you're annoyed you actually have to deal with finding a new tenant and want to take it out on this person for making you deal with the process of subletting a room like you supposedly wanted to do. Them's the breaks, this is what you deal with.(And yes, i've been exactly where you are dealing with a perpetual stream of subletters renting out rooms in a big house i lived in. It is annoying, but it isn't a license to be a cock)
posted by emptythought at 2:55 PM on May 28, 2013 [3 favorites]
How much was the deposit? because if it cost more than the cost of filing in small claims court and you were being an asshole about it i would have already filed against you on like... day 35 here.
And if you're not familiar with that process, it's VERY sided in favor of the tenant. The judge basically goes "Show me the proof that you had a reason to keep this deposit. Show me what specifically you spent it on, or how they cost you money by the place being vacant/any other reason"
Your response is essentially going to be "well, umm, uhhh...umm" especially if they're smart enough to pay the utilities via say, certified mail before they do this.
And at least around here, you owe MORE than the deposit(i think up to 2, maybe even 3x) if you lose in this situation as a bit of a slap to say "don't ever be an asshole like this again".
You are setting yourself up for a potential serious boning here.
And on a side note, what exactly did they do wrong here? At least where i am, requiring more than two weeks notice isn't even really legal. That's basically the standard. I've also heard the "two weeks notice" thing being the case in other states from various people. This reaction just feels seriously catty, and that you're annoyed you actually have to deal with finding a new tenant and want to take it out on this person for making you deal with the process of subletting a room like you supposedly wanted to do. Them's the breaks, this is what you deal with.(And yes, i've been exactly where you are dealing with a perpetual stream of subletters renting out rooms in a big house i lived in. It is annoying, but it isn't a license to be a cock)
posted by emptythought at 2:55 PM on May 28, 2013 [3 favorites]
Tell the roommate that you'll be happy to return the deposit if you find someone, although you're going to take the missing utility payment out of it unless they pay it before departure.
Then do exactly that, except if you don't find someone, give the security deposit (minus the utility payment) back to them anyway, and say "hey, times are tough, no big deal, good luck."
Finally, for the next renter, don't ask for a security deposit; ask for one month's rent in advance, and if they don't pay on time for a given month, let them know you're looking for a new tenant, and if they don't pay up by the time you find out, they're out when their prepaid month of rent is out. Keep receipts etc.
posted by davejay at 4:17 PM on May 28, 2013
Then do exactly that, except if you don't find someone, give the security deposit (minus the utility payment) back to them anyway, and say "hey, times are tough, no big deal, good luck."
Finally, for the next renter, don't ask for a security deposit; ask for one month's rent in advance, and if they don't pay on time for a given month, let them know you're looking for a new tenant, and if they don't pay up by the time you find out, they're out when their prepaid month of rent is out. Keep receipts etc.
posted by davejay at 4:17 PM on May 28, 2013
you should deduct whatever payments they would have made from the deposit until a replacement is ready. if the balance is negative, you don't have to pay them anything. 1) it's their own GD fault it's not in writing. a person who doesn't insist on it is making a big mistake. 2) in the time you're withholding paying back the deposit they still have the "right" to live there.
posted by cupcake1337 at 12:13 AM on May 29, 2013
posted by cupcake1337 at 12:13 AM on May 29, 2013
This thread is closed to new comments.
posted by deanc at 8:55 AM on May 28, 2013 [10 favorites]