Document everything, understand the rules around “wear and tear” and know your rights if your landlord refuses to return your money.
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The end of your lease is approaching and you’re starting to pack your boxes and take your art off the walls. Many months or even years ago, you probably paid the first month’s rent and a security deposit.
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As you’re preparing to move out, how do you make sure you get your deposit back? How much of that money can your landlord keep? And what do you do if for some reason you can’t recover it?
Read on for your rights and responsibilities as a tenant — and those of your landlord, plus tips from lawyers who have represented both sides in Housing Court:
What’s the deal with the deposit?
No matter if you live in a rent-stabilized or market-rate apartment, your security deposit can’t exceed the cost of one month’s rent, thanks to New York’s Housing Stability and Tenant Protection Act of 2019. (If you paid more than that for your rent-stabilized apartment, you can file a complaint to the state using this form.)
A landlord must return the full amount of the security deposit if the tenant complied with the terms of the lease and left the apartment in the same condition as when they moved in, except for wear and tear. (More below on what “wear and tear” means.)
A landlord has 14 days after you move out to send an itemized list of what they’re deducting from the security deposit in order to cover the cost of repairs for damage. If the landlord doesn’t do this within the two-week period, they must return the full amount of the deposit.
“If the 14 days are up, no matter what the tenants did to the property — even if they took an ax to the walls — that security deposit gets returned to the tenants,” said Adam Lietman Bailey, a lawyer who mostly represents large landlords. “[If] the landlord did not write a letter within 14 days complaining about the problems within the apartment, then that security deposit gets returned.”
What is normal wear and tear and how does it compare to damage?
Bailey said a landlord cannot charge for repainting or cleaning “unless it’s such a mess that it goes beyond a reasonable amount of dirt.”
Wear and tear is all about “what happens naturally over time,” said Archana Dittakavi, deputy director of the Tenant Rights Coalition of Legal Services NYC. For instance, it could include faded or scuffed painted walls, or a floor that needs to be buffed.
Small holes from nails in the walls — from picture hooks, for example — is where it can get tricky. It’s advised that tenants try to fix the holes as best they can. But severity matters.
“A gaping hole or something that would prevent the landlord from renting it to the next tenant is beyond wear and tear,” said Leah Goodridge, a tenants’ rights attorney. “The apartment doesn’t need to be spotless and clean. It just means you can sweep a broom through and it’s good to go for the next tenant.”
As a tenant, you have the right to request an inspection of the apartment before you leave, and you can be present for the inspection. This way, the landlord can point out anything they take issue with, and then you have the opportunity to fix the problems — and get your full deposit back.
“Leaving it up to the landlord to decide what might be a reasonable fee to fix something might put tenants in a worse position than fixing the things themselves,” Dittakavi said.
Requesting an inspection shortly after moving in can also be helpful, in order to distinguish any damage that was there before you settled in so you’re not liable for it.
What must I do to have the best chance of getting my full deposit back?
Document, document, document, attorneys advise. Amassing evidence will cut down on disputes later and, in case you do end up in court, can help prove your claims.
When you move in, take photos and videos of the space — showing that everything, from windows to sinks, is in good, working condition — along with proof of the date (you can hold up a daily newspaper or a digital display of the date). Do the same before you move out.
Put everything in writing — requests for repairs during your tenancy, the date you actually vacate the space, even the fact that you have moved out and given back the keys, Goodridge said.
And move out thoroughly.
“Make sure you remove all your stuff or they’ll charge you a fee for removal,” Bailey said. “Removing things from an apartment is very expensive and that will eat up your security deposit.”
Can’t I just skip paying the last month’s rent since my security deposit can cover that?
That’s not really what a security deposit is for, and it’s risky to treat it as your final rent check. But in reality, that’s how the money is used between tenants and landlords who don’t trust each other, experts say.
“The concept [of a security deposit] is to compensate the landlord for any damage to the apartment or unpaid fees,” Dittakavi said. “If a tenant moves out with any unpaid rent hanging in the balance, the landlord can use that to recoup any unpaid rent.”
Ronald Languedoc, a partner at Himmelstein McConnell Gribben & Joseph LLP who represents tenants, said he’s familiar with situations where people don’t trust their landlord to give back the deposit, or know their landlord to have a reputation of not returning it — so they opt not to pay rent for the final month.
“I’d just say, if you don’t pay the last month’s rent and the apartment has no damages beyond normal wear and tear, it is true the landlord would just apply the security deposit to the last month’s rent and the parties would be even,” Languedoc said. “It’d be unlikely there’d be any legal action brought against you. But it’d be at your own risk.”
What happens if my landlord doesn’t give me my deposit back in time, or I disagree with the accounting of damage?
If the landlord charged more than one month’s rent for the deposit or failed to pay it back, tenants can contact the state Attorney General’s Office by filling out a form. The attorneys there can mediate between the landlord and tenant to get the money returned, and may take legal action if the landlord serially does not follow security deposit rules for multiple tenants.
Another route is to go to small claims court and file a claim against your landlord. You can sue for amounts up to $10,000. Note there is a filing fee of $15 or $20 depending on how much the claim is for. It’s possible to request a waiver from the clerk if you can’t afford the fee, said Dittakavi.
Though a large landlord might be represented by a lawyer in small claims court, tenants don’t need one.
“It’s intimidating to go to court by yourself, but small claims court is by design intended for people who don’t have attorneys,” Dittakavi said.
But be warned: if you go the small claims route, there’s no telling how long your case may take before it’s resolved. And remember to be prepared.
“Have all your documentation together: all your receipts, documentation of the condition of the apartment, records of any communications in the course of your lease, photographs, etc.,” Languedoc said.
Anything else?
It’s not a well-known rule and rarely done, lawyers said, but landlords of buildings with at least six units must keep the security deposit in an interest-earning account at a bank. Tenants are entitled to the interest earned on the deposit, minus the value of 1% of the deposit for the landlord to use for administrative purposes.
In theory, you can get that interest paid annually, paid out at the end of the lease term or as a credit to your monthly rent. But typically interest rates are so low that it’s unlikely a tenant would receive anything significant. Still, you can ask your landlord about where they’re holding the deposit and what the interest rate is on the account.
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