Q: I’m in a sticky predicament! Last year I leased my house to two people; they were boyfriend and girlfriend, or at least that’s what they told me. Prior to moving in, they both signed the lease, and each one gave me a $750 check towards the total security deposit, which was $1,500.
The female decided not to move in, but the male moved in. I agreed that if he could find another roommate I would refund the female’s security deposit and charge the new person a $750 deposit. However, he never found anyone.
Time passed and the lease expired, and we did not write up a new lease. We did no new paperwork; rent was always paid on time; and he was a perfect tenant. He gave 30-day written notice and paid for those days. We stayed flexible because he was buying a home and there was some work to be done in the home before he could move in.
He finally vacated the premises two days ago and now owes me for 17 days of rent.
Anyway, he wants the whole $1,500 deposit to be made out to him. He says the female said he could have her deposit. I think the female needs her $750 deposit because she signed the lease. He refuses to give me her phone number and I have not been able to track her down. Can any of this $1,500 deposit be applied to the rent he now owes? What should I do?
A: While I can see how this situation occurred, there were several times during the tenancy that you should have taken steps to prepare documentation that accurately reflected the current circumstances. At this point, your feeling that the female roommate still has an interest in the $1,500 security deposit is correct and you should not just send the balance of the deposit to the male tenant.
As you indicated, the female applicant (prospective tenant) signed the lease, and she gave you a separate check for $750 towards the security deposit. The fact that she did not ultimately move in does not change the legal status that she is a tenant of record per the lease. Nor is the exact amount of the payment that important, as the fact remains that she is still on the lease and both parties have a joint and several interest in the full $1,500 security deposit regardless of who paid what amount.
Your discussion with the male tenant about him finding another roommate and receiving a $750 deposit from that new roommate never happened, so that verbal agreement is not relevant. Therefore, without a specific written agreement that relinquishes her interest in the security deposit to the male tenant, you need to continue to consider the full security deposit of $1,500 as running with the rental unit and the lease that was signed by both of them.
The fact that the female applicant did not live there is not a basis nor proof that she is not entitled to any portion of the unused security deposit, and does not qualify as a proper acknowledgement that you can give the male tenant the rights to the entire security deposit.
I would suggest you process the security deposit refund just as you would normally and then remit the balance, if any, in a check payable to both of the tenants on the lease. You should send the accounting and the check to the male roommate, but also send a copy of all paperwork to the female roommate at the address of the rental property since you don’t have another address of record. She might have a change of address on record, but most likely you will get the envelope returned by the post office as undeliverable. Nonetheless, keep this envelope as proof that you made a good faith attempt to contact her and account for the security deposit, as under the lease she had an equal claim to it.
This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of "Property Management for Dummies" and "Property Management Kit for Dummies" and co-author of "Real Estate Investing for Dummies."
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