[elaine48]

We rented a private home in New York state for six months and paid a $5,000 deposit. Our landlord is in financial difficulties (we get collection agency calls for him often and we understand he is trying to sell the house). We suspect that he has spent our deposit.

We considered this landlord a friend, so unfortunately did not protect ourselves with the usual photos, etc. on moving out. We did a walk-through with him in which we pointed out some items that we offered to take care off (marks on curtains, broken glassware, etc.). At that time, he said he was satisfied with the state of the house, and we left on very good terms. We also owe for heating oil, as the landlord said he would prefer to measure the tank when we left and take any oil used out of the deposit. We want to do the right thing and pay for the items that are our responsibility

After moving out in June, we made several email inquiries about settling up our deposit, with only one response that there were further damages that he was getting estimates for. Finally, (mid November) we received a list of damages, unitemized, with a total number that is higher than our deposit. The list is outrageous, and we plan to dispute it. We believe that the landlord has spent our money and looking for ways to make us go away.

We plan to ask for an itemized list with estimates and/or receipts and photos within one week and then address each item, going to small claims court if we can’t come to an agreement. But we have a few questions.

Can we ask the landlord to prove he still has our money? (If he doesn’t, surely it’s a sign of bad faith). “New York Landlords, regardless of the number of units in the building, must treat the deposits as trust funds belonging to their tenants and they may not co-mingle deposits with their own money. … Each tenant in New York must be informed in writing of the bank's name and address and the amount of the deposit.”

We understand that in NY,” the landlord must return the security deposit, less any lawful deduction, to the tenant at the end of the lease or within a reasonable time thereafter.” Given that we still do not have an itemized list of repairs almost six months later, can we argue the landlord has forfeited any right to withhold any portion of the deposit? We actually don’t want to do this, as we do feel some of the items are fair, but it might help the negotiations.

$5,000 is a lot of money and we are very distressed that our trust has been so misplaced. Any further advice is much appreciated!

[bobloblaw]

You are right, and the landlord is required to provide a statement with your funds in a bank account. You are also entitled to interest on those funds. He's also required to provide an itemized expense list of the items he's billing you for. It's a shame you didn't take pic on the way out, but if you go to court, the landlord must provide written estimate for the repair work, and pictures of the damages to prove his point too.

I would immediately file a claim in small claims court.