Hi. I have a tenant who gave written notice (in an email) that she would be out by July 31. She did not move out and give back the keys until August 4 around 10 pm. Am I allowed to deduct the double rent from her security or do I have to give back the security and take her to court to sue for the extra rent?
Also, when I informed her that I would deduct the extra 4 days (double) rent from the security, she said she hired a lawyer and she doesn't have to pay rent if I am also charging another tenant rent for that time. (I had someone lined up to move in and he had already given me a deposit and the first month's rent. I was going to give him back some rent for the time he couldn't use the apartment. But what about the fact of her having to pay double rent as per the law?)
And one more question... Can she keep coming to the apartment to get left over items? She has some miscellaneous items... does she get 30 days or something to come, even if she gave me the written notice that she would vacate on the 31st? She has a tendency to show up and pound on doors. She also sent me an email saying she would show up at my house every day this month until she got her deposit back. I had let her know earlier on several occasions that I legally have 30 days to return it, but that if she had all her stuff out and the apartment was in good order and clean by the 31st, then I would give it back to her right away. She slept over until the 1st and had her animals still at the apartment, then she came home after work that day and moved all her bedroom stuff into the living room and said that the apartment was liveable and that she could not charge extra rent. Meanwhile, the kitchen was an utter mess from the move, completely covered in dirty dishes, many liquor bottles, boxes, trash. It remained that way for a couple days. So the new guy DID get possession of his room starting around 5 pm on August 2, but the rest of the house was full of her stuff and unusable. Does this matter in terms of charging her the double rent? Thank you so much for any help. :)

I'm not sure what you are referring to as the "double rent". If this is a law in your locality you need list the statute. As a general rule, her lawyer is correct, you can't collect rent from two tenants at the same time. So the answer is simple. You inform her that since she didn't turn over the keys until Aug 4, that you will be charging her a pro-rated rental for those days. If she cries foul, you simply explain that you will be refunding the new tenant a pro-rated rental for those four days.

You can deduct any rental due from the security deposit, just itemize it.

Once she turns over the keys she has abandoned what is left in the apartment. If the new tenant is nice enough to let her in, that's up to him. You both have every right to throw anything she left in the garbage.

However you do have a problem in that you let the new tenant take, at least partial possession before she turned over the keys. That really throws a monkey wrench into this. Frankly, I think you need to consult your own attorney to help unravel this mess.

I am not a Lawyer but in Indiana you are responsible to find another tenant. When you do you can no longer charge the person that has left. You should be able to pro-rate and be paid for the four days if you did not have a tenant during that time. As far as items left you need to let her know in writing they will be outside on this date and this time and she needs to pick them up. If you are being harassed see a Lawyer.

I'm in New Jersey. The law I'm quoting is:

HOLD OVER TENANT DOUBLE RENT
N.J.S.A. 2A:42-5
Printed February 2008
2A:42-5. Holding over by tenant after giving notice of quitting; double rent recoverable
If a tenant of real estate shall give notice of his intention to quit the premises by him held at a
Time specified in such notice, and shall not deliver up the possession of such real estate at the
Time specified in the notice, such tenant, his executors or administrators, shall, from such time,
Pay to his landlord or lessor, his heirs or assigns, double the rent which he should otherwise have
Paid, to be levied, sued for and recovered at the same times and in the same manner as the single
Rent before the giving of such notice could be levied, sued for and recovered. Such double rent
Shall continue to be paid during all the time such tenant shall continue in possession after the
Giving of such notice.


It was indeed very awkward to let the new tenant come take partial possession while the old one still had all her stuff there, but he was a visiting professor from another country and I couldn't let him sleep on the street. He was very accommodating and dealt with the mess, but I still feel that he deserves at least one day or two rent back, since he couldn't move in until the 2nd.

Really, we are talking about $136 in extra rent that I was going to take out of her deposit. It's kind of not worth it to hire a lawyer myself over and get all crazy about. I'm a bit skeptical if she actually DID hire a lawyer for such a small amount, but in her threats she mentioned that I would have to pay double security and her lawyer costs. I found out that if she won in court, I would have to pay double of the portion of security I withheld, not the whole security, but she may not know that. Also, the law says it's at the discretion of the court whether I would pay her lawyer costs.

I am not sure how this would all play out in court... The facts are that I gave her the option to move out end of July or end of August. She wrote that she would be out July 31. I was at her apartment on July 31 and her roommate had finished moving his stuff and I gave him his security back and got his keys and it was all good. She however, was literally painting her toenails in the kitchen and said she had a date. A few days before she had called and told me she couldn't move everything out until a few days after the 1st because some things had come up, like her softball team at work made it into the championships. Don't know if a judge will take pity on her, or if none of the circumstantial stuff matters, only if she was living there and if I had someone else move in.

Ok, Yes you can withhold the prorated rent doubled from the security deposit along with any other costs of cleanup.


If the former tenant doesn't like it, let her sue you. The only question may be when you let the new tenant move in. But I would force her to sue you.

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Originally Posted by ScottGem

Ok, Yes you can withhold the prorated rent doubled from the security deposit along with any other costs of cleanup.


If the former tenant doesn't like it, let her sue you. The only question may be when you let the new tenant move in. But I would force her to sue you.

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I completely agree with Scott. She can come after you in small claims court if she feels it's unfair or unlawful. I would definitely recommed that how ever many days you charge her for (and I agree you can legally double it), you need to make a statement for the new tenant and refund him those same days (at the regular rate). That way if it came up in court you can show that you did not, in fact, collect double rent. Keep a copy of the canceled check after he cashes it.

If I had a nickel for every time a tenant or former tenant has mentioned their lawyer I wouldn't have to own rental property.

Lol. Ok, thanks for the answers. The tenant also refused to take the amount of the deposit that I was going to refund her and said laughingly that if she refused it and won in court then I would have to pay double security. What I am planning to do is give the balance of the security to the County Clerk and send a notice to the tenant that it is there.
Also, do you know what kind of proof I have to have for deducting cleaning and repairs from the security? I am kicking myself for not taking pictures of the place and what a wreck she left it for days after the 1st. I do want to replace a window screen that she tore holes in when she repeatedly locked herself out while she was living there and then "broke into the apartment" by climbing in the window, plus she painted and splattered paint on the floors and the wood-working... that I can get pictures of. Also, she had put duct-tape on the wall and then pulled it off, leaving the sticky stuff there, which I have to figure out how to repair.
That's a good idea to get a copy of the cashed check for the rent refund to the new tenant.
The main thing I'm worried about is if I am supposed to give back her security and then sue her separately for the prorated rent, or if I can deduct it. Would that be different in different states?
Thanks much.

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Originally Posted by stargirl2

The main thing I'm worried about is if I am supposed to give back her security and then sue her separately for the prorated rent, or if I can deduct it. Would that be different in different states?
Thanks much.

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Everywhere that I've ever owned property the tenant has the burden to prove that your charges aren't justified, not the other way around. (Of course, that may vary by location.) Unless she can show photos of the place clean, without the damage you're claiming, you should be fine there. And I'm sure you don't want to impose on the new tenant, but if it should come down to a lawsuit you do have a witness regarding the condition she left the apartment in. (Did he wind up having to clean? You could always pay him for the cleaning and then you'd have proof of that, too.)

As far as holding out the pro-rated rent, what does your lease say? Of if it's not in your lease it should be in your state's laws. It should list what all types of "damages" you can apply the deposit to. Lost rent is a type of damage.

I would send her a statement that shows a detailed account of what you are deducting. Send her a cashier's check for the balance you're returning to her. If she doesn't cash it, or returns it, you'll have a paper trail to prove you attempted to return her deposit, less lawful deductions, within the time specified by law.

Don't communicate with her beyond sending this statement. From what you've described she has no case. I cannot imagine any attorney taking this on. They'd tell her to cash the check and shut up.

Wow. Ok, well you know, she was quite a Tazmanian Devil in her threats to sue me... I was wondering the same thing about a lawyer taking it on, but my thought on that is that either he doesn't care because he will be paid either way, or she has painted the facts in a skewed way (as she has a strong tendency to do) and made it seem like I'm one of those landlords who try to rake their tenants over the coals,. and I've got some kind of racket going on where I charge two tenants rent. I had actually given her notice some months ago, but she came to me and pleaded for a second chance, saying she was turning over a new leaf in her life and going to therapy, etc. I really did want her to do well, so when she asked for a trial period to see how it went, I said yes. Then when that just wasn't working out, I asked her to leave a second time and she told me that she was a victim of my indecision. After being speechless when she said that, I had to admire her for her amazing creative ability to turn things around making someone else responsible for her misdeeds! (She wasn't picking up her dog's or taking out her recycling and garbage, was taking my things without asking, etc.)
I've never had a tenant like this in 13 years, so I guess I should count my blessings!
Good advice to not communicate with her beyond sending the security with a statement... she actually just agitates me far too much!
One of the other tenants did end up cleaning up her mess after she left, so I was going to pay her. I'm a bit afraid of the crazy tenant, though, I imagine her coming and slashing all the window screens in the middle of the night if I charge her for fixing the one!

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Originally Posted by stargirl2

Good advice to not communicate with her beyond sending the security with a statement... she actually just agitates me far too much!.!!

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I know. Been there done that. For me, it always seems to be people who I've tried to help, who wind up sticking it to me. It's hard not to become jaded. And it's hard not to want to just sit there and argue with and preach to people like her.

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Originally Posted by stargirl2

I'm a bit afraid of the crazy tenant, though, I imagine her coming and slashing all the window screens in the middle of the night if I charge her for fixing the one!!

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I've felt this way about people, too. I've only once in 15 years had someone actually DO something vendictive. Just remember you're running a business. You are well within your rights to charge her for the damage she did. You can't eat the damage because you're worried about what someone might do.

You should be prepared (and it seems you are) with the laws govenring landlord tenant relationships for your area. So when a tenant threatens you with a lawsuit, simply reply something like:

You are free to spend the money on suing me, but according to <insert statute number> the law says I can do this.

People try to intimdate with the law don't let them, turn the tables.

In every state law I've seen, the landlord is allowed to withhold rental amounts due from the security deposit. The decision can only be made by the landlord however. A tenant can't legally say, when since you have one month's security just apply it to my last month's rent.

And if she thinks that be refusing the deposit, she will get you for not returning it, she is sadly mistaken. As long as you can prove you made the attempt, she's got no case.

I guess you are right about the business thing. In the past I've been a real push-over, even with people who probably assumed I'd keep their security. I've been putting my foot down lately, but she is the only one who is just really difficult to deal with... What is ironic is that I knew from the start she would be a problem, but I let the other tenants pick who they wanted out of three people who applied... They (guys :)) picked her because she is cute and she said she baked cookies. Personally, I never saw any cookies in the year she lived here :rolleyes: Anyway, I'm letting the dust settle and see what happens, I have 30 days to give her back her security. I'm still in the process of hunting down the exact laws in my state, just to be super sure. And the funny thing is, I really DID want her to do well, and helped her... But I guess if a person needs a lot of help then it's a sign you probably don't want them living at your house or property!

It's complicated since I let the other guy move in while her stuff was everywhere, but I didn't know what else to do... actually, instead of the extra rent, maybe I'll just charge her for the repairs and cleaning that I was just going to let slide. Yuck, in the future, I'm not going against my better judgement, and won't let the guys pick someone based on looks and promises of cookies!
Thanks for all your help people!

Oops, ScottGem, sorry I just saw your response...

"You are free to spend the money on suing me, but according to <insert statute number> the law says I can do this."

That is a GREAT way to handle it, thanks... gives them a choice and doesn't attack them, but let's them know the deal.

And the thing about her saying by refusing the deposit that she can sue me and get double back seemed outlandish... I mean, EVERY tenant would be doing that, what a great deal! She may have talked to a friend who was an attorney or something like that, and he said don't cash the security check because if you do, it's an agreement that you are satisfied with the amount and that our business is concluded... I have heard that before. Actually, it's good she is making such a stink, because it's making me get all my facts and learn the laws. ;)