Security Deposits

What is a security deposit?
A security deposit is money you give to your landlord when you sign a lease to protect the landlord. A lease is a contract between you and your landlord that contains the rules and terms of the rental. Leases may be either written or oral, but leases for a year or longer must be in writing. The security deposit is held by the landlord during your rental of the apartment. At the end of the lease the landlord must give the security deposit back to you within a reasonable time, unless there is damage to the apartment beyond normal “wear and tear”. Also, some leases allow the landlord to keep the security deposit if there is unpaid rent at the end of the lease.

What happens to the security deposit during the lease?
The landlord must keep your security deposit separate from their own money. If the apartment is in a building with six or more apartments, the landlord must put the security deposit into a bank account in New York State where it will gain interest at the prevailing rate. The landlord must also tell you the name of the bank, address, and amount deposited. Also, the landlord must give you the option of using the interest on your security deposit to pay rent or have the interest paid to you at the end of the lease.
If the apartment is in a building with fewer than six apartments, the landlord has the option of placing your security deposit in a bank account where it will accrue interest. If the landlord chooses to do this, he must follow the same rules.

What happens to the security deposit if you’ve been evicted?
If you have been evicted, you cannot try to recover your security deposit until the end of the lease. For example, if you have lease for January to December, and are evicted in June, you cannot try to recover your security deposit until December unless your landlord agrees otherwise.
Also, whether you can recover your security deposit after being evicted depends on the specific terms agreed to in the lease. If the lease agreement says that the landlord can keep the security deposit if any term of the lease is broken, then the security deposit is treated as “liquidated damages”. If you are evicted and the lease says that the security deposit may be used as liquidated damages, then your landlord may use the security deposit to cover unpaid rent.

What should I do to avoid problems with getting the security deposit back?
Before you agree to lease the apartment walk through the building with your landlord and come to an agreement about what is damaged. Write down a list of all the damages and have both of you sign it. Later, if your landlord tries to charge you for that damage, you’ll have that writing to take to court with you. Sometimes landlords will refuse to do this walkthrough, or they won’t have time before you move in. Instead of agreeing to a list of damages, you can go through the apartment with a camera and take pictures of anything that looks damaged. You can also hold up a copy of the day’s newspaper in the photograph to help prove what date you took it on.
There are a few things a tenant can do when moving out of an apartment. First, make sure the apartment is clean and empty of your property and garbage. Landlords often charge tenants for cleaning. Second, do another walkthrough with your landlord and write up another agreement about damages in the apartment. If your landlord cannot come or refuses to, make sure to take a second set of pictures before you move out.

How do I get my security deposit back from the landlord?
The landlord must return the security deposit to you at the end of the lease within a “reasonable time”, usually within 60 days. Remember, the landlord may deduct money from the security deposit for any damage to the apartment beyond normal “wear and tear”. Wear and tear is minor damage to an apartment that happens because of regular use by someone living there. An example of wear and tear might be missing varnish on a hardwood floor next to the front door, or a few small holes in the wall from hanging pictures.
If there is damage to the apartment beyond wear and tear, like large stains on a carpet, the landlord must give the tenant a list of damages and how much they cost to repair. The landlord must do this within a reasonable time after the end of the lease, usually 60 days.
After 60 days, if the landlord has not returned your security deposit or given you a list of damages, you must bring him to small claims court to recover your security deposit.

What do I need to know to take my landlord to small claims court?
You can only sue your landlord in a small claims court where he lives or does business. If you are unsure of where your landlord lives, or he refuses to tell you, call the Tax and Assessment Office in your area. Tell that office the address of your apartment, and they can give you the address of the taxpayer who owns that building, free of charge.
Next, call or visit the small claims court where your landlord lives, and talk to the court clerk or judge. The clerk or judge will assist you with the paperwork needed to file a claim against your landlord, depending on which Town, Village, or City Court you are in. You will have to pay a small filing fee of no more than $20. The clerk will tell you the date and time of your court date, and notify your landlord as well. You do not need to contact the landlord after this.

What should I bring to the hearing?
Bring any evidence that might support your claim that you deserve your security deposit back. Remember, your landlord can keep your security deposit for damage to the apartment or for unpaid rent. Make sure to bring a copy of the lease if it was in writing. Bring bank statements that show you paid rent. Bring pictures of your apartment or witnesses that can tell the court what your apartment looked like.
You will have to present your version of the case to the judge first. You will tell the judge what happened, give evidence, and call witnesses and ask them questions. The judge may ask you questions as well; make sure to give clear and polite answers. After you’re done telling your story, the landlord gives his/her version. Even if you disagree with what your landlord says, don’t interrupt. Being respectful in court will often help you more than disagreeing with your landlord.
The judge will sometimes make a decision at the hearing, and sometimes after the hearing is over. Either way, you’ll receive a “notice of judgment” that tells you how much money you are entitled to and how to collect it from the landlord. The notice of judgment is good for twenty years.

How do I collect money from the landlord if I win?
If you win, contact the landlord and ask him to pay the amount of the judgment. Although a court has said the landlord owes you money, that does not guarantee you will be paid! If you ask your landlord to pay the money and he refuses to pay or refuses to talk to you, you will have to hire an “enforcement officer” to help you. Enforcement officers are often local sheriffs, police officers or constables, and will help you collect the judgment for a fee.
The enforcement officer will need to know what the landlord owns in order to help you collect your judgment, and you must be the one who finds out what the landlord owns. One simple answer is the building you just leased an apartment in. You can also call the department of motor vehicles to find out if your landlord owns a car.
Once you find property your landlord owns, the court clerk issues an “execution” to the enforcement officer to take the landlord’s property. The enforcement officer collects the property of the landlord, or places a “lien” on it, in order to assure that you are eventually paid. A lien on a property means the landlord cannot sell it until he pays you first.
Once the landlord does pay you, you must notify the court that you have been paid. If you do not tell the court, you may be penalized with a fine.