When to return security desposit if lease not ended?

Question

This is a follow up to an earlier question I asked.  I had a previously excellent tenant break their lease.  We agreed she would continue to pay rent until a new tenant is found.  She is not low income.  We're advertising heavily but given the time of year, we're not getting any bites.  We're below market rent. In the spring our properties in this neighborhood rent in a week, at a higher rent. That's the background.

She hasn't followed through on paying rent for this month and I suspect we may need rent from her in December, as well.  We'll likely be going to small claims court.

What I'm specifically wondering about is the security deposit.  Do I need to provide the itemized list within 30 days of the day they vacated the property or within 30 days of of the end of the lease?  Also, do I need to return the balance of the security deposit within 30 days of them vacating or within 30 days of the end of the lease?  (We'll end the lease when a new tenant is in place)

I've been doing lots of googling, but the answers I've found aren't very clear.  Before consulting with a lawyer, I wanted to pick the brains of this community :-)  I want to do this by the book so I'll have a clear case if/when we end up in court.

Rick Pozos · Answer

I still trust people, but I also do what I need to do to protect myself.

It is the 5th of the month and tenant says they will pay the rent by the 8th. I tell them no problem, there is a late fee please pay the rent and the late fee on friday the 8th when you get paid. There should be no issue. I also tell them that I believe them and know that they will pay me, BUT I am going to give them a 5-day notice to vacate for failure to pay rent.

I tell them that when they pay on the 8th, no problem we are good. They get a receipt for the rent and its all over.

I also tell them that if for some reason they dont pay on the 8th I have already given them notice and I will start eviction procedures. I dont want to lose any time if they are actually stringing me along.

If I wait until the 8th and then they say, next week on the 15th. And then they dont pay on the 15th and then I give 5 day notice we are already on the 20th to start eviction. I just potentially save time. Also, the tenants know that I am serious about the rent.

Thomas S. · Answer

@Jennifer Streamer

"Sometimes people do the right thing!"

Unfortunately in this day and age it is extremely rare. Always best to assume the worst and act appropiatly.

Jennifer Streamer · Answer

I like to wrap up my threads in case someone is reviewing in the future.  Here is how it turned out.  The tenant paid her November rent, but not December.  We had a new tenant in place on January 1st.  We sent her the checklist of repairs we made after turn over activities.  We spent some time writing it up carefully and deducted the December rent and final water bill.  After the repairs, she owed us $900 or so.  We included info in the letter that we would take her to small claims court if she didn't pay us the balance.

After two weeks, we were preparing to send a second and final notice but, SURPRISE!  She sent the $900 she owed.  So everything turned out fine and we didn't even need to go to court.

One of these days, I'm sure a tenant will burn us and we'll get more cynical.  But for now, we still don't have any horror stories.  This was still annoying though.

@Deanna McCormick Sometimes people do the right thing!

Corby Goade · Answer

Unless you have both signed paperwork saying so, the lease has not ended and you should be fine (check with an attorney) to hold on to the deposit. It doesn't matter if they are living there or when they moved it, it matters what the dates on the lease are.

Best of luck!

John A. · Answer

If they have not returned the keys, they have not turned over possession of the property.  So, if they have stopped paying rent, sounds like you'll be doing an eviction with a judgement for back rent.  Time to talk to a lawyer.

Deanna McCormick · Answer

See how nice and helpful people can be when the situation is correctly stated :)

@John Andruszka   SO Ya your next step is post pay or quit then file for non-payment, eviction, she's not gonna pay you a dime. is my bet and I bet I'd win that bet..

You have no guarantee she'll pay rent, you've given her 2+ extra weeks to move.. You send out security deposit statement ONCE you have possession of unit,, either they give you keys, or you get possession from court in eviction.. from that date is when you have to have the security deposit / statement mailed out within your (30 days) time period per state law.

Jennifer Streamer · Answer

@Deanna McCormick  Thanks Deanna.  Our state law says 30 days, but I'm not finding a clear answer if that is from the end of the lease or from the date they moved out.  They have not returned the keys yet and the utilities are still in their name.  They moved the bulk of their possessions out by October 31st, with a few odd items taken out over the next week.

I probably should talk to a lawyer to make sure I'm doing everything in the proper way.  She did notify me this morning that she plans to pay the november rent, with late fees.  She'd alerted me on the first that for the first time she was short and asked for an extension.

Deanna McCormick · Answer

Actually,, YOUR State law dictates the period required to return a sec deposit statement.

For some one like this,, I would have done a statement with outstanding rent owed and included a statement the date apartment was listed for rent,, and that the outstanding balance due would be adjusted as to the date the apartment is rented.

You might have missed your window,, you might be out everything,, What did tenant sign when she left ??? If she returned keys to you,, that's the date she gave up possession..

Anthony Hurlburt · Answer

You need to provide an itemized list within 30 days of the end of the lease or when you place a new tenant, whichever comes first. In your scenario you will likely be using the security deposit to cover rent, but that should be spelled out in your itemized list that you provide.

When to return security desposit if lease not ended?

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