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MikeO5422 · Aug 25, 2007, 11:32 AM

Hi, I live in NY around the albany area. Recently, I paid what I was told was a security deposit. However, the receipt was signed as deposit. Anyway, I chose to move out of that location after living in this terrible place for 11 days (place was run down, mice poop in my dishes, broken windows, can't get a hold of land lord, etc etc.) , I did not pay any rent (as I coudlnt get a hold of him) , no lease was signed, and now the land lord says I paid a non refundable deposit and it was not a security deposit. He said the only way I could get my money back is if someone moved in before a certain date. The deposit was 600. Also someone did move in and he still won't return my money. Unfortunately I don't have his statement in writing. I do have proof in our email conversation that it was indeed a security deposit that I paid him. I have two questions:

How does the fact that there is no lease effect the situation?

Lets say for the sake of argument that I did pay a non refundable deposit. Is that legal?

MikeO5422 · Aug 26, 2007, 04:35 PM

Anyone know? I am going to court soon and it would be helpful to know any legal information. =)

rockinmommy · Aug 26, 2007, 05:08 PM

Mike, I would check the first post in this forum for a link to New York state's landlord/tenant laws. See what it has to say about security deposits. Basically since you didn't sign a lease with the landlord your state's laws become "the lease" that you both are governed by.

I would think that if you have an email from the landlord where he calls what you paid a "security deposit" then whatever the law says happens with security deposits would be how the judge would rule.

But, since you moved out like you did, you'll also want to read up on the laws concerning the conditions property must be kept in, etc. Technically, you broke the lease by not giving the required (30 days is typical) notice. If you can prove that the landlord was in violation (shouldn't be hard to do) and/or the apartment was un-livable you should be in good shape.

You might also consider checking with code enforcement, etc in the city the property is located. Sounds like this guy needs a wake-up call! (I hate bad landlords... they give us all a bad rep.;) )

Hope something there helps.
Karla in TX

ScottGem · Aug 26, 2007, 05:33 PM

Didn't you look at this apartment before renting it? Were the windows borken when you moved in? Was there no evidence of mice?

You will really need to prove unlivable conditions to prevail here. The bottom line is you probably owe at least one month's rent because you took possession. The landlord can use what you paid towards that one month's rent.

MikeO5422 · Aug 26, 2007, 08:22 PM

Yes I looked at the apartment and there were a few cracks in the walls but no where NEAR as bad as it was when I moved in.
BTW rockinmommy I found some very interesting information. I guess if it can be proved that we entered an oral lease, due to the fact we did not move in on the agreed date I have to right to terminate that lease and get a refund of ANY deposit (real property law 223-a) On the other hand, according to the minimum requirements of a lease (written or oral) we did not enter ANY kind of lease. What does that do to the deposit?

Some other points of interest... Land lord did not due a walk through of the apartment to assess damage when we moved in, he lied about the utilities in his advertisement (he said heat, water, and gas are included but not electric. Yet it is electric heat, all landlords in my area are required to pay water, and there are no gas utilities). He told me over the phone that if someone moves in for the fall semester I get a full refund. Someone did move in and he said I still don't get a refund.

Also the conditions of the apartment (I have pictures) do violate the multiple residence law section 174 and the warranty of habitability law. But what are the repercussions for violating these laws? I searched for a long time and I could not find any penalties.

excon · Aug 27, 2007, 05:04 AM

Hello Mike:

They are BAD and WRONG. They're terrible landlords. And, it doesn't matter...

In the law, one has to take things in their proper order. IF you paid rent, YOU would have a case against them. But, you DIDN'T pay rent. ALL legal factors will stem from THAT fact - not the fact that they're lousy landlords.

I know you were advised to search out the laws... However, I'm going to advise that you STOP. I don't know where you came up with the law you did, but it doesn't apply. You're a tenant. You either have a lease or you're a month to month tenant. That's your LEGAL status.

IF the rent you agreed to pay is MORE than your security deposit, they'll use what they have toward your rent and they could SUE you for the rest - maybe even next month's rent too, because you didn't give them 30 days written notice...

excon

ScottGem · Aug 27, 2007, 05:47 AM

How much time passed between your looking at the apt and when you moved in? Landlord is not required to do a walk through.

As for the conditions violating the habitality laws. Did you report them to the landlord? Did you give him time to fix the problems? You didn't did you? You just moved out without notice. Tenant/landlord laws are often a two way street. Just as landlords are required to adhere to to certain laws, so are tenants. You didn't adhere to the laws governing your tenancy.

So the bottom line here is, if the LL refuses to return your deposit, you need to sue him. Will you win? Its iffy. You just moved out without sufficient notice, you didn't give the landlord time to repair the problems. You owed him at least one month's rent. He can make a case that he's withholding the deposit to pay for the unpaid rental.

MikeO5422 · Aug 27, 2007, 07:38 AM

So far ty for the help every one. To answer your question... about 5 months passed from the time I looked at the apartment to the time I moved in. You are also correct when you said I just moved out and did not contact the land lord to fix any problems.

After doing a bunch of research and talking with you guys on the forums the entire situation just seems iffy on both sides. So I'm going to leave with one final question. Is it worth taking this case to court? Rent was 500 a month and my security deposit was 600. Im pretty confident that I can prove that what I paid was a security deposit. If that can even help me... At the very least it can catch him in a lie.

If there are any other suggestions or information you guys can provide me with that would be great. Thanks for your time.

ScottGem · Aug 27, 2007, 07:41 AM

Small claims court isn't going to cost you much. So you might consider it worth the investment. But remember, even if you win, you still have to collect. The LL may still refuse to pay and you will need to find cash assets you can attach. A LL like that is liable to have his ets protected.