Hello,

I have a question regarding my right to withhold a security deposit after my roommate recently moved out after giving us 4 days notice.

This person moved in this past April 1st and has paid rent through June 30th. He is not on the lease as he took the place of my third roommate who moved out mid-march, we had agreed that he would have the option of signing the lease when we renew August 1st, but it was agreed by all parties that he would reside in the apartment at least until that date.

As it turned out, within his first 6 weeks of living in our apartment, he managed to completely infest our apartment with bedbugs after purchasing used furniture. This has resulted in a raised level of tension and animosity in our home, as my other roommate and myself have been forced to spend countless hours and hundreds of dollars exterminating, cleaning and trying to salvage our belongings. While away on vacation this past Tuesday (6/12), we received an email from our roommate informing us that he will be moving out of the apartment on Friday (6/15) because he no longer "feels welcome in (his) home" and he is nervous about living in an apartment with an elevated health risk as he claims to be extremely allergic to bedbug bites. While we are certainly not upset to see him leaving our apartment, he has left us with 18 days to fill his room and portion of the rent, in an apartment that is still completely packed up in trash bags.

It is my understanding of the law that regardless of whether he is on the lease or not, we are legally obligated to give him 30 days notice if we want him to vacate the apartment, and conversely, he is obligated to give us 30 days notice if he plans to vacate the apartment.

My question is whether it is legal for me to keep his security deposit (he paid us directly in cash because he was taking the place of our roommate who left before the lease ending, we then passed on his security deposit to her, leaving our original deposit untouched with our landlords), because he has vacated the apartment with so little time for us to find his replacement. I would, however, prorate the apartment if we are able to find a new tenant and return his portion of the rent for the time that he paid rent but did not reside in the apartment.

In short, I feel that we are entitled to at least a portion of his security deposit as he has technically abandoned the apartment and left us in a situation where we are liable for his portion of the rent. I want to find out if it is legal for me to hold his security deposit for his portion of the July rent if we are unable to fill his spot before the July rent is due. He assumes that because he is vacating the apartment mid-month we will have no problem finding a new roommate in this time, and we are thereby legally obligated to return his full security deposit on July 1.

I would appreciate any advice or help in clearing up this complete nightmare of a situation.

Thank you!

... My question is whether it is legal for me to keep his security deposit (he paid us directly in cash because he was taking the place of our roommate who left before the lease ending, we then passed on his security deposit to her, leaving our original deposit untouched with our landlords), ...

Your landlord is holding his security deposit, not you. Correct? So how would you be able to apply it to what you feel the roommate owes you? You understand that the roommate doesn't owe the landlord anything?

(You have explained how security deposits are passed on, a common practice I went through many times when sharing.)

Security deposits are for damage, not for unpaid rent. You can keep it based on the bedbugs, charge more for his portion of the exterminator, and sue for the rest of the rent due. But as one NYC lawyer remarked, tenants who rent rooms to other roommates as people leave are caught in a huge grey area of the law. Judges don't like those cases either, and the roommate who left rarely pays anyway, even if you win.
Keep the deposit. He might take you to court, so keep a good paper trail.

(You have explained how security deposits are passed on, a common practice I went through many times when sharing.) ...

I assume this comment was meant for me.

The explanation OP gave was this:


"... he paid us directly in cash because he was taking the place of our roommate who left before the lease ending, we then passed on his security deposit to her, leaving our original deposit untouched with our landlords ..."

In other words,

The previous roommate (her) had contributed a portion of the deposit. this deposit is held by the landlord.

When the original roommate moved out, the new roommate paid OP in cash, who in turn paid it directly to the old roommate, instead of to the landlord. Thus

the old roomate got her deposit back,
the landlord still had the deposit originaly received, and
OP had no deposit.



My question remains: how can (the legality of doing so aside) OP debit a deposit which OP does not have?

AK lawyer, you are right; it isn't clear at all, even though I juggled this many times in the 60s and 70s.
I think what OP is asking is 'Can we tell the bedbug person he doesn't get his security back when a new roommate pays it.'
But I shouldn't speak for the OP.

First, a security deposit exist to protect the landlord against loss. Lost rental is an indemnifiable loss. A security deposit can be used to reimburse for unpaid rental.

But the problem here is the OP doesn't have a security deposit, their landlord has it. However, it is common practice for a new roommate to pay a security deposit to the departing roommate. In that case the OP can withhold the deposit and use it to reimburse for lost rental if they are not able to find a new roomie before July 1.

Thank you to everyone for your responses, they have been very helpful.

To be clear: I currently have the money (in my own funds) to give my departing roommate his security back, however, it is my wish to keep it in order to pay his portion of the rent for July 1st. He is assuming that we will be able to fill his space in the next 2 weeks, but with such little time and the apartment still in "recovery" mode from his bed bug infestation, I don't think it will be possible - unless of course we rush into a hasty decision based on a few craigslist replies, which is how we found him in the first place - and you can see how that turned out.

I should also mention that because we have such amazing landlords, our rent is only $1500/month, which makes his deposit $500. I've spent close to that just on cleaning and supplies related to the extermination. In addition, he informed us of his early departure three days ago, while we were out of town on a vacation that we planned long before the bed bug incident, and were unable to rebook. I know that complete inconsideration has no legal standing, but given the situation I feel that we are at least entitled to a portion of the security.

Again thank you all for your help, it is much appreciated!

AK lawyer, you are right; it isn't clear at all, even though I juggled this many times in the 60s and 70s.
I think what OP is asking is 'Can we tell the bedbug person he doesn't get his security back when a new roommate pays it.'
But I shouldn't speak for the OP.

This is basically, exactly what I want to know - do I have a legal right to keep his security deposit if I am unable to rent his room before July 1st (which is probable). Thank you!

This is basically, exactly what I want to know - do I have a legal right to keep his security deposit in the event that I am unable to rent his room before July 1st (which is probable). Thank you!

You can't keep HIS security deposit because you don't have it. You CAN use the security deposit paid by the next roommate to offset whatever he owes rather than turning it over to him.