Can a landlord keep my depositif he breached the lease and rented to someone else?

UPDATED: Oct 19, 2011

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Can a landlord keep my depositif he breached the lease and rented to someone else?

My daughter signed a lease and paid a $1400 deposit. She got the keys/garage door opener and was to move in next day. However, within 24 hours the landlord called and told her that he rented to someone else who paid more. He then refused to give back her deposit. The locks and codes were changed. Then 5 days later the other tenants backed out of agreement. Now he is holding my daughter to her agreement and charging her.

Asked on October 19, 2011 under Real Estate Law, Arizona


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

No...the landlord may not keep the deposit when he is the one who breached or violated the agreement. If your daughter had breached, then the landlord could likely have kept it--one of the purposes of the deposit is to encourage tenants to not breach, by making it cost them cash up front to do so--but the landlord is not entitled to it when he breaches.

Also, the landlord cannot now hold your daughter to the lease or agreement, not after he breached it. If she wanted to take the apartment, as the non-breaching party, she may still be able to enforce it (generally, the non-breacher gets the option of either continuing the agreement or treating it as termmianted)--and note that if she does consider the agreement still in force, then the deposit would stay with the landlord as if nothing had happened--but the landlord may not force her  to honor the contract. Rather, when one party to an agreement materially breaches it (or breaches it in a critical fashion, such as renting a leased premises to someone else), the other party may consider the agreement terminated.

If the landlord won't give your daughter he money back, she may need to sue to get it.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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