Can a real estate agent keep our deposit if we were not approved on credit?

UPDATED: Sep 14, 2010

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Can a real estate agent keep our deposit if we were not approved on credit?

My wife and I decided to move and found a rental house of our liking. The owner of the house uses a Realtor for all his business. Since we are renting the lady told us to pay a deposit equivalent of the first months rent of $900. So we did and were given a move in date of 09/15. Well today 09/14 she calls and said based on our credit we are not approved and that they are keeping the deposit. We never moved in the house nor did we get a “damage Walk through”. Can they keep our deposit? The owner just moved out today 09/14.

Asked on September 14, 2010 under Real Estate Law, Georgia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

It depends on what kind of deposit it was. If it either a security deposit--for damages or rent unpaid at the end of the tenancy--or it was last or first month's rent or something similar, then no, she should not be able to keep it. Those are deposits to protect the landlord from damage or default FROM A TENANT; but if you never rented, you were never a tenant. If instead it was a deposit to hold the apartment for you while you applied--call it an "application deposit"--then it *may* be nonrefundable, particularly if you were told it was a nonrefundable deposit.

There is  good chance then that you need to get the deposit back. You could either speak with an attorney or look to file a suit in small claims court. Good luck.

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