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I was a tenant "at will". Can I get my security deposit back with less than 30 days notice of vacating the premises?
Anonymous4 views4 answers
I had a two year lease and then decided to go month to month. The landlord lives out of state so his cousin takes care of the house. This gentlemen started harassing, cursing etc whenever he felt we were being noisy which we were hardly home anyway. We used to always report him.We decided we had enough and started looking for a new place. The day we signed the lease for the new place we called the landlord and he was quite upset and tried to invoke the terms of the lease so that he would not return the security however I told him we only did this due to harassment. He agreed that he would return the security but never did. Does he have any standing? We had no lease but we only gave 4 days notice because we didn't want to go another month with this nonsense that the landlord was fully aware
Under New York State law, a landlord who accepts a security deposit from a tenant has a duty to hold it in trust and not co-mingle it with other funds. If the landlord deposits the security into a bank account, it must be a separate account that is not used for any other purpose and, immediately upon depositing it, the landlord must notify the tenant in writing of the name and address of the bank and the amount of the deposit. If a landlord fails to do this, the tenant is entitled to the immediate return of the security deposit and the landlord forfeits all claims to it. If the landlord complies with theses requirements, however, then the terms of the written lease agreement with respect to the security will control. For example, some leases provide that the purpose of the security is to protect the landlord from damages to the property caused by the tenant, while other leases provide that the security is to ensure the full and faithful performance by the tenant of his or her obligations, including the payment of rent. You may very well be entitled to the full and immediate return of your security deposit; and I suggest you consult with a landlord-tenant attorney in your area to determine whether you can bring an action to recover the security (such an action would be either a small claim or a civil action, but not a landlord-tenant action, since the possession of real property is not at issue).
I am not a NY attorney, but based on your statement, I'd say you are very exposed in liability to the LL. You had a two year lease--but decided to go month to month? Who decided, you and the owner or you? Was the new lease put in writing?
It appears you did not give notice to the LL IAW the lease agreement or NY state law.
You did not detail what you describe as 'nonsense' and 'harassing', but unless its very well documented somehow, I suspect you are going to end up owing at least one, maybe more months rent to the original LL, plus damages, attorney fees, and its very possible you may owe more than that.
I strongly recommend you contact a NY landlord tenant attorney and discuss your options--depending on the amounts of money involved you may want to open negotiations with the previous LL and come to some kind of settlement.
In New York, a month to month tenancy requires that a landlord/tenat must provide a landlord/tenant with at least 30 days notice prior to end of a term. The notice must end at the same term as the original agreement. So if your lease ended the 30th of each month notice must be given for the 30th. Unlesss you got something in writing you will have a hard time to get security back.
Dear was a tenant "at will.” Can I get my security deposit back with less than 30 days notice of vacating the premises?
I hope to offer some guidance. I am not certain how you decided that you are a tenant "at will" because you described facts that are more in line with a mutual decision to create a month to month tenancy after the lease expired and you and the landlord did not renew the lease for a new term. In such situations, in the absence of a rent regulated tenancy, a monthly or month to month tenancy is created.
See New York Real Property Law Section 232-c:
"Sec. 232-c. Holding over by a tenant after expiration of a
term longer than one month; effect of acceptance of rent.
Where a tenant whose term is longer than one month holds over
after the expiration of such term, such holding over shall not
give to the landlord the option to hold the tenant for a new term
solely by virtue of the tenant's holding over. In the case of
such a holding over by the tenant, the landlord may proceed, in
any manner permitted by law, to remove the tenant, or, if the
landlord shall accept rent for any period subsequent to the
expiration of such term, then, unless an agreement either express
or implied is made providing otherwise, the tenancy created by
the acceptance of such rent shall be a tenancy from month to
month commencing on the first day after the expiration of such
term..."
The month to month tenancy ends at the end of each month and only continues if the tenant pays rent to the landlord for the next month and the landlord accepts the rent.
You may argue, in Small Claims Court, that having moved out before the next month began, that your tenancy ended on the date you vacated, and that you are entitled to the balance of the security deposit, as the lease may have provided, less any excessive wear and tear.
If you expired written lease required that you give some prior notice to the landlord before moving out, that term of the old lease may be projected into the subsequent month to month tenancy. If that clause existed and you were required to provide notice and you did not, the owner may make a claim for the security if the lease provided for the security to be applied to unpaid rent.
I cannot inform you if the landlord’s brother in New York has “standing.” You may have paid your rent all along to the brother, with nothing more than an understanding that was what you had to do, unless you were given a true copy of the brother’s authority to act in place of the owner involving real estate matters. Generally, owner’s act through “agents” but “agents” cannot start landlord and tenant proceedings against tenants as “agent” for the landlord. Only the owner or the landlord may bring that case.
Likewise, your claim for the security deposit is against the owner and not the agent, unless the agent was the person who represented to you that he has control over the security deposit and you have a copy of the authorization to the agent made by the landlord. If that is so, you might be able to sue the agent. If you are not able to sue the agent and the owner resides out of state and you cannot serve a summons on him outside New York in a manner that the Court would recognize as providing jurisdiction, you may investigate if the owner violated New York State’s Penal Law, and if so, turn this matter into a police issue.
