deposit

[Flavius]

On my lease it states that we are to give sixty days written notice, if we are going to move at the end of the lease. My question is I did not give written notice in sixty days at the end of my lease, more like ten days. They kept my deposit. Am I srewed?.

[Aubergine]

A security deposit is supposed to be available to compensate a landlord for damages. Did the landlord re-rent the apartment? How soon after you moved out? For what rent? If the apartment was immediately re-rented, your failure to give notice probably cost the LL nothing, so it should not cost you your deposit.

[Flavius]

Did the landlord re-rent the apartment? yes
How soon after you moved out? I am not sure, after they repainted and show it.
For what rent? Higher than I payed.

[Aubergine]

You could sue the LL in your local court for the return of your security deposit. If your former LL is in Hartsdale, the court is the Greenburgh Town Court at 108 Tarrytown Road near White Plains.

It is often best to first write a letter to the LL, demanding the return of the security deposit, and giving a deadline for the LL to do so before you go to court.

Generally, a LL may retain only that portion of a security deposit that compensates it for actual damages. The LL would have to show actual damages from a tenant's failure to give notice, and if the LL was able to re-rent the apartment at the same or higher rent, the LL suffered little if any damages.

"Penalty" provisions in a contract that don't reasonably relate to anticipated damages are not enforceable. An example would be a lease provision that would provide for the forfeiture of a tenant's deposit if the tenant gives 55 days instead of 60 days notice of nonrenewal, even though the LL could anticipate no actual damage as a result of such a breach. The provision in your lease may be unenforceable, and be found to really be just a penalty, not a way to compensate the LL for real damages that would be hard to estimate. As one court put it, "Since the clause awarded the same exorbitant sum irrespective of the time of the breach and even in the instance where, concededly, the damages flowing from a breach and immediate re-rental would be negligible, it constitutes a penalty and is unenforceable." LeRoy v Sayers, 217 AD2d 63, 71 (1st Dept 1995).

Also important to consider is that a LL of a building with 6 or more units has a legal obligation to put a security deposit in a separate, interest-bearing bank account, and a LL of any size building who deposits a security deposit in a bank must not conmingle the deposit with its own or other funds; it has to go in a separate bank account in trust for the tenant. If the LL violates these provisions and conmingles the deposit with its own funds, the LL has no right to set off the deposit against its damages, even if the tenant did breach the lease.

Fully educate yourself about the law regarding security deposits, then contact the LL and make your refund demand. If you have not done so already, gather evidence relating to the re-renting of the apartment and proof that you paid the deposit, as well as any information the LL gave you about how the deposit was handled (including cancelled checks that might show it was put in the LL's personal account). Then go to court and file a claim against the LL.

[Anna]

In adition to augergine's info re the 'unenforceable penalty' of two months rent for failure to give 60 days notice, read up on the general rules re security deposits:
http://www.tenant.net/.WWW/ubbgraphics/ultimatebb.php?ubb=get_topic;f=2;t=000163

[Flavius]

Thanks for the help! It is a company that I have to sue to get my money back. I will let you know the out come. Thanks again.