What to do if we gave a landlord money for a security deposit but weren’t able to move in?

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What to do if we gave a landlord money for a security deposit but weren’t able to move in?

My husband was doing work for at the time and got fired from his job. We told her we could not move in and she refused to return our deposit. The duplex was not livable at the time because husband was doing work for her. We had the money at the time and went ahead and gave her the deposit. We never got to even move our stuff in.

Asked on December 5, 2012 under Real Estate Law, Arkansas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

The landlord does necessarily need to return your deposit if you did not move in. If  you had a written lease for a defined period of time, such as the traditional one year lease, you could be held liable or accountable for the rent for that entire time; the lease is a contract, and your obligations under it are not affected by a change in your personal circumstance, such as unemployment. If you had either an oral lease or a written month-to-month lease, you could be held liable for at least one month of rent. In either event, the landlord could take the rent you owe and deduct it--so at least one month of rent--from your security deposit and only return any remaining amount.

You write that the "duplex was not livable at time"--if the unit was not inhabitable at the move-in date, however, the landlord would have been in violation or breach of her lease obligations and the implied warranty of habitability. In that event, you could terminate the lease without penalty and should receive you money back. If the landlord will not return it, you would have to sue her for  the money, and prove in court that the unit was not merely not quite ready, but that it was not inhabitable.


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