There are many ways in which landlords can cross the line and get into 
serious trouble with their tenants, but perhaps the easiest is by misappropriating their security deposit. The security deposit belongs to the tenant, not the landlord. Period. End of story.
Yes, the landlord may be entitled to retain the security deposit at a later time, but only after jumping through several very important technical hurdles. Until then, hands off!
The Massachusetts statute governing residential security deposits is chapter 186, section 15B. It is long and confusing. Nevertheless, the statute carries heavy penalties. A landlord who mishandles a tenant’s deposit, even by mistake, may be obligated to reimburse the tenant for three times the deposit, plus attorney’s fees, plus any court costs incurred.
The basic principal is to avoid any co-mingling of the security deposit with other money. The trouble often begins when the landlord first receives the deposit. In essence, the landlord becomes a trustee of the tenant’s money. Since the deposit must be kept separate from other money, the tenant should not give a single check that combines the security deposit with any other payments. The security deposit should be paid with a separate check or money order. Payment should be made directly to the security deposit account and not to the landlord. Accepting cash for the security deposit is ill-advised since there is no way to distinguish between cash belonging to the landlord and that of the tenant. It doesn’t matter that the cash is later deposited in a separate account – the violation has already occurred.
Once accepted, the money must be placed in a separate bank account that is properly labeled as a security deposit account. In the event that the landlord becomes subject to claims of creditors, the tenants’ money must be held in an account that is clearly identified as escrow funds that do not belong to the landlord. The money may be placed in an account with other security deposits as long as the account is properly labeled and contains none of the landlord’s money.
Another common mistake by landlords is keeping any last month’s rent in the same account as the security deposit. Unlike the security deposit, last month’s rent is money that does belong to the landlord – it is simply rent that was paid in advance. So putting it in the same account with the security deposit would result in co-mingling and would be a violation of the statute.
The security deposit needs to stay in the account until the end of the tenancy. The only exception is if the tenant does not pay the rent. Here is another trap for the unwary landlord. The landlord may not deduct rent from the security deposit if the tenant has withheld paying rent for a valid reason. However, tenants often do not tell the landlord immediately why they are withholding their rent. So a landlord who is quick to withdraw funds from the account without verifying the reason for the lack of payment may be in for a nasty surprise later.
Of course, the primary purpose of the deposit is to protect the landlord in case of unpaid rent or damage beyond reasonable wear and tear. In order for the landlord to apply the security deposit, he or she must have taken several other important steps designed to protect the tenants before the deposit can be applied. These include providing a statutory “Statement of Condition” and detailed receipt at the outset of the tenancy, notification of the bank account where the money is held, paying annual interest, and providing a sworn statement itemizing any damages that are being claimed, together with evidence of the repair or cleaning costs.
The bottom line for any residential landlord is to consult an attorney to be certain you understand your rights and obligations before accepting a security deposit. The modest cost for this advice will pale in comparison to the penalties that may be faced after the damage is done.
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Hi my wife and i have put a deposit down on a apartment. We have not moved in yet, and havent payed the first months rent yet. We have signed the lease, but only after signing it did the landlord tell us that the deposit for the electric was 350 dollars. Are we able to get our deposit back and cancel the lease?
I planned to spend the winter in Florida and sent a deposit per landlord instructions, to hold the property. Due to illness in the family we decided not to go. Landlord says deposit is non-refundable but I have no contract, have signed nothing, and stayed there with the same landlord in 2010 with no problems, and the old contract used in 2010 doesn’t say anything about the deposit being non-refundable. I have asked for my deposit back in February and the least starts in December. Any advice? Thank you in advance.
I had to have my condo inspected after tenants were in there for 7yrs. Inspection failed. The garage was converted to a room and now has to be put back to Garage. Tenants are not happy. I have one more yr for lease to expire. The want compensation and want a rent reduction. I need the house back asap. Because I have no place to live. The condo is in Marlboro NJ. Can I break the lease. By law the work must be done. The lease states that i have the right to do alterations if necessary. They want to sue me. Please advise madaline
im 22 and a brand new business owner of a personal training studio here in Paterson NJ i have been open almost a month. the landlord brought it to my attention early this week that he lost/misplaced my security deposit check of $2,100 and im supposed to pay rent the first of April what are my rights please help.
I paid my landlord cash for deposit have ended tenancy want deposit transferred into bank account or cash landlord will only send in post as cheque my deposit is in a deposit sceme for tenants mydeposits.co.uk can he do this
I live in houston, tx. Recently i was going to rent a mobile home, i gave deposit and first months rent but i have come across the problem of not being able to turn on the lighys in the mobile home they say i need a permit for my mobilr home but its not mine i just wanted to rent a olace, needless to say i decided not o rent said place, the manager yells me that the landlord will mot give me my deposit back and she is not sure about the rent. I never moved in, did not sign a lease, can they keep my depsit and rent if i never moved in to yhe place. Please help as soon as you can. Please and thanknyou so much.
My partner and I are renting from a divorced couple. We initially signed the lease and made our security deposit with the ex-husband. He immediately cashed our check and used the money to finance his move to another state (stated this in an email to his ex). His ex-wife took over the lease and a subsequent lease the following year. We are not renewing our upcoming lease which will be up on May 31, and have given her almost a year’s notice. She has made no attempt to recover or replace the funds in the security deposit. I say, our remedy is to leave the end of April and tell her we aren’t paying the final month, knowing we will never see the deposit. We’ve made many repairs and improvements on the property, so, it will be left in excellent condition. Your input would be greatly appreciated.
Hello-
I signed a lease (in MD) in June of 2013. It was a one year lease. In December I contacted my landlord and let him know we were looking to buy a home. The house we rented was a 2-br and we are a family of 5. He stated that he was going to sell the house and to let him know when we were ready for notice. I have kept all of our communication via text where we update him on our closing, the day we were moving, etc. I gave him complete notice on Feb. 17th that we would be moving in March. I paid him all of March rent and we moved out March 9th. He FINALLY did the walk through for our security deposit on March 23, 2013. He said the security was in an ING account and would return it within a few days. I am still waiting. He made NO attempt to rent the home. He placed a for sale by owner sign in the front lawn on March 23rd when he could have started that process in December. Am I entitled to take him to small claims court? I technically broke my lease but he was aware and told me he would be selling it. I also gave him ample notice.
Is it possible to put a provision into the lease and have the tenant agree that the security deposit does NOT go into a separate account? This would avoid the hassle of setting up an escrow account, but does the lease contract supersede the MA statute?
Thx.
I moved into an apartment house with my 4 children in wv in july of 2012. Shortly after moving in things went wrong the basement where i did my laundry constantally flooded.. there was a leak in the bathroom that caused flooding in my kitchen ceeling and cabinets and caused food loss.. With every thing that went wrong i took pictures.. even before i moved in. During my stay my kids and i continually suffered from migraines and the house was so old and drafty the base board heat didnt keep the house warm i had to spend the kids christmas money to buy portable heaters. the tennants next door to me had a pipe rupture and bc the pipes froze they taped the line with something to warm it but i was paying to keep the pipes warm.. on top of all of this she tells me that if something else goes wrong she is jacking up the rent. I have all the text messages between her and i locked on my phone as well as the pics. she told me via text if the flooding in the basement was a issue she would let me out of my lease. We found a warmer and dryer house for the kids and i let her know that i found another place but she refuses to give me my deposit back.. is she allowed to do this to me???
Norman,
Unfortunately, no, the provision cannot be waived by contract. Specifically, subsection 8 of the statute provides:
(8) Any provision of a lease which conflicts with any provision of this section and any waiver by a tenant or prospective tenant of any provision of this section shall be deemed to be against public policy and therefore void and unenforceable.
Of course, This information does not constitute legal advice and is not intended to substitute for legal advice or create an attorney-client relationship. The information contained may or may not reflect the most current legal developments; no representations are made regarding completeness, accuracy or applicability of the content, and should not be considered an indication of future results.
I live in PA. I struggled through the winter paying our rent. It was late several times but I kept in contact with my landlord and we did always pay it. She told me she and her husband are divorcing and they want to sell the house back to the bank. I was also told when I moved in that the last tenant here used their security deposit as the last month’s rent and I could do the same. But she keeps asking me for the rent. She gave us a 60 day notice. When we moved in I signed a 6 month lease that was not renewed 7 mos ago when the 6 mos had run out. We have lived here for 13 mos. I also own a biz and use this as the place to park my biz vehicles and use the electric for them. So now we have an entire family here plus our biz which is our only means to make money at stake and having to relocate. We have 3 weeks left and have not found a place to live or for our biz and she keeps e-mailing me about it. The house has had a LOT of issues in the year we have been here from repairs needed to us being vandalized several times, theft, mouse issues and bat infestation. My husband actually woke up with a bat crawling on him on the bed and we cannot go in to the attic to get our things in the one section without being hissed at. She said she wants us out by May 15th in her notice so she can come in and get her appliances and other things and she is meeting Wells Fargo Bank to sign the deed over to them for the house. What should we do and what rights do we have here?
I live in West Virginia, and subleased with the leaser of an apartment in December with my girlfriend. Who as it turns out, was not allowed to sublease the apartment, though the agency they rented from does not know she did. We paid the security deposit, and have paid rent on time every month. For my own reasons we needed to move out, and according to the sublease, as long as thirty days notice was given, we would receive our deposit back. I gave notice on February 23rd, that I was moving out by the end March.
We were asked to move out halfway through March for a new tenant with the promise of half the months rent back. However the tenant dropped out while we were moving out, although no notice was given that we were not receiving the half months rent.
I mentioned a week after we moved out, when we would get our deposit back. This was when they told us that they were surprised how messy the apartment was, which we had scrubbed down. and that there was a hole in the wall, which was actually a small dent.
I did not hear from them again until recently when I requested my deposit back, as it had been over thirty days since notice was given. now they also say they do not owe of the half months rent as the tenant had not moved in. On top of that they only want to pay us half the deposit back for the reasons mentioned above, and in addition because our landlord had to put out effort, which we aided in, to find a new tenant. And now they also cannot pay us that half months rent until the end of May.
now that we feel they are doing anything to get out of paying us, or as little as possible, we are considering taking them to small claims court at the advice of our families. How much are we actually entitled to here?
Thank you for your time!
I live in the North San Diego County and my husband and I moved out of an apartment last month and we paid $648 for the security deposit and we only got back $56 of the whole security deposit. We left the place a lot better than when we got it. On the sheet they gave us of things they were charging us, there were small insignificant things that we had already taken care of and things that weren’t even on the checklist they gave us of things we needed to fix. These landlords weren’t the same ones we had first signed our lease so they didn’t see how the place was. So my question is, how can I go about talking to them to getting my full deposit back?
My roommate and I both signed a roommate agreement and had to pay separate deposits. Our lease is expiring, but only one tenant will be renewing. Can the other tenant be reimbursed for their portion of the deposit that they paid; since it was done separately in the beginning, initially?
Hi. Can my landlord take me to court asking for money back from my deposit after 21 days? I live in CA
In Massachusetts does a Rental Lease drawn up by a landlords Realtor supersede a rental application? If something is listed in the signed rental application (security deposit) but not in the signed lease does this make the rental application verbiage null and void?
home or close and notice but on our door not to make payments to the landlord any longer we did and we seed cash for keys does my landlord still owe me the security deposit the landlord was not allowed on the property before we move
Hello,
I got engaged in august and my fiance asked me to move in with him. My lease tho did not end till end of August. I let my landlord know that i got engaged and i was not leaving there anymore but i would pay my rent till end of october. My roommates agreed to take over my lease and I asked him to draw a form to get them to sign. Ne never did give me that. My roommates payed november and december for me and my landlord also has the 1000$ deposit. the lease agreement sayed that i have to leave i have to notify him earlt and pay him 4 months. (which if you add up the security deposit and the nov & dec adds up to 4 months of rent) I tried calling him emailing him texting him and he never replied to me. Now he is asking me for 3800$ because i the lease is still under my name. after all the attempts i made to contact him and never heard anything back he tells me this after 7 months. Meanwhile he also had people living there for a month and a half. He is also threatening me to take me to court. I have all the unresponded emails and text messages recorded. I will contact an attorney but should i be worried?
I just moved out of a home that I was leasing with option to buy. I am unable to purchase it because of my credit. I moved in four years ago and never missed one payment. I was supposed to pay a $500.00 security deposit on the home 4 years ago and never did and was never asked, but it was written in the contract. The home is up for sale now and I just moved out last weekend. There is normal wear & tear on the house, but I kept it in very good order and spend a day mopping floor and cleaning. The realtor (whom I do not get along with) emailed me this morning and wants my forwarding address? Can the landlord or realtor come back on me for the $500.00 or can they accuse me damages that I did not do?
I paid a $3600 deposit and am pretty sure my landlord spent it. How do I go about requesting to know what account the money is in. If I request that information, is she required to give it to me?
Two US Olympic athletes training in Indianapolis, rented an apartment for 6 months leading up to London Games. Our lease was from Feb. 11/12 to Aug 11/12. The apartment was in poor condition when we moved in. Initial damage report showed there was lots of work to be done (paint peeling, carpets filthy, leaves & dirt in house). Maintenance never responded to our requests for repair. We trained 6-7 days, 12 hrs each day, so rarely home. Landlord changed our locks the day before the end of our lease, making the final move out difficult and some cable equipment was stolen. After move out, Landlord kept delaying the return of security deposit with excuses well into October: they couldn’t reach the owner of unit, then a flood destroyed their info on us, so they lost our addresses (we emailed them our home addresses Oct 10th) etc. The Landlord sent final statement of security deposit on Nov. 8/12, which is well after the 45 days required, along with a bill charging for painting, carpet cleaning (items never repaired from move in) etc. The Landlord now refuses to return our $350 deposit and says to ‘take them to court’. Question: When does the Indiana 45 day rule begin: after we moved out(lease end) or after we emailed them our home addresses? They always HAD our home addresses since all of our rent checks have that information on our checks (and on our applications). Our Landlord knew that we were renting for only 6 months because of our training schedule and would return to our permanent homes in California. Please advise?
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