What do we do with a security deposit if my tenant broke the lease 2 days prior to start date?

UPDATED: Oct 30, 2011

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What do we do with a security deposit if my tenant broke the lease 2 days prior to start date?

New tenant broke lease just before he was to move in. The apartmentt was painted and in good condition. He gave us the security over a month ago and we took it off the market. We even asked the old tenant to move out on the 20th (lost 11 days rent) in order to give us time prep. The unit was ready 3 days before the lease date because he asked if he can move in a couple of days earlier at no charge. The apartmentwas painted, new kitchen tile, and new appliances which he knew about. However, on the 29th he refused the apartmentt because he asked us to refinish the floors throughout. We offered a $700 credit to do the floor but he said no.

Asked on October 30, 2011 under Real Estate Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

If there was a lease formed between you and the new tenant, then he is not entitled to break it, unless you violated the lease in some material way. So, for example, if the lease did not obligate you to refinish the floors, then it doesn't matter if he wanted it done; only if the lease provided that you would refinish the floors and you refused to, might that justify the tenant's termination.

If the tenant's breach was not justified, then he is liable for rent the whole remaining term of a written lease, or until you re-let the premises, whichever is sooner. If it was an oral or verbal lease, then he is liable for 30 days (the notice period).

The security deposit may be applied against rent which the tenant is obligated for but does not pay.

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 AttorneyPages.com 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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