Can my landlord hold my security deposit as collateral for late or missed rent?

Question:  My roommates and I have been renting this property for the past 3 years through college.  We were occasionally late, but did eventually pay the rent.  The landlord indirectly told us about some late fees, but never directly mentioned or enforced payment.  As we finally move out, he is attempting to collect late fees for the past 3 years, which are in the $5,000 range, well above our security deposit that he won't return either.  Do we have any legal recourse options?

Response:   The landlord and tenant(s) are obligated to adhere to the terms of the rental agreement that was signed by all parties involved.  Your landlord can ask you to pay late fees only if they are included in the rental agreement you signed.  If this is the case and the contract specified a date the rent was due each month that the tenant did not comply with, then tenant is therefore responsible for the late fees specified in the agreement.  However, if the landlord did not enforce the payment of late fees, he may have set a precedent for accepting rental payments without enforcing the late fees stipulated in the contract.  Your landlord would have to prove in court that he is entitled to these late fees, which will be up to a judge to decide.

The landlord may only keep your security deposit to cover unpaid rent, to repair damages (other than normal wear and tear), or to pay rent if the tenant moves out without giving proper notice.  The first thing you need to do is to ask for your deposit in writing.  Make sure you note that there was no damage to the apartment; therefore, you are legally entitled to the return of your deposit within 30 days.  If the landlord still does not return your security deposit, you may sue him in small claims court.

The laws governing landlords and tenants vary in each state.  It’s recommended that you check the laws of your state regarding the refund of your security deposit.

Additional Resources:

• Landlord Tenant Laws by State           
• Late Fees and Tenants Rights

Answered by Linda Adams

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