I live in a 5-bedroom shared house. Four months ago, a roommate left and we sublet a room to a woman. We made the very silly mistake of not making her sign the lease, partly because there were only a few months left on the lease. Now, with one month left on the lease, she’s moving out–sticking the other four roommates with her portion of the tab.
She claims she shouldn't pay for two reasons: 1) She gave us over a month of notice that she'd be leaving before that last month. 2) She claims we told her when she moved in that she would be able to stay for longer than 4 months. Since she is forced to go, it isn't her fault for leaving early.
It is true that she made us aware that she was moving out early some weeks ago, but she did so by off-handedly mentioning it to one of the roommates. She did not discuss it with us individually or formally. We assumed that she would be paying for that last month. She didn't say, "I'm moving out, and I won't pay for the last month."
The second claim is false. At best, we said we weren't sure whether we would extend the lease for another year or not. She may well have had the impression we were staying, but we didn't do anything to give her this impression.
So, who's in the wrong here? In the absence of a signed document, is she basically a month-to-month tenant who has no obligation to stay so long as she gives us notice? If this is the case, was her notice adequate? We have her security deposit in cash, do we refund it to her or spend it on her rent?
[I’m not really looking for legal opinions (unless they shed light on who’s right), since we’re not going to take this to small claims court; worst case scenario we’ll just cover the extra rent.]
Her security deposit my NOT be held in lieu of the rent. Security deposits are for cleaning and repairs only, and must be refunded or accounted for in cleaning/repair bills. A pre-payment of the last months rent may be made at the time of lease signing, but it is entirely separate from the security deposit. Cite.
Seems to me she’s a month-to-month, since you have no lease with her at all. I agree that it’s a shitty thing for her to do, but you should have covered your butts in writing.
But since she never signed anything, isn’t her security deposit, legally-speaking, just a pile of cash that she gave us? I mean, we’re not her landlord. If it were a legal security deposit, he would have it, right?
Technically, she does not owe a security deposit under the terms of our lease–she is subletting. The security deposit paid by the person from whom she is subletting remains with our landlord, and will be returned to that person at the conclusion of our lease.
However, we asked for an additional months rent as a guarantee. Just what we were guaranteeing is unclear, since we never wrote it down. I suppose you could argue either way that it is a security deposit or a guarantee of rent. But since there’s is no documentation, it is just a pile of money.
Now you’re getting into legal questions, which I’m not qualified to answer, and wouldn’t answer online if I were.
But if you all had an understanding that it was her portion of the security deposit when she moved in (and your calling it that in your OP tells me that, at heart, that’s what you knew it was), then it’s just plain unethical to change your mind now that the situation has changed. Can you choose to be unethical? Maybe - I don’t know the law. But I know ethics, and it’s not what I would choose.
Well, when I say “security deposit,” I’m not using the legal term. I would use that term in everyday speech to refer to a guarantee of rent as well. In any case, you think the ethical thing to do here is just take the loss?
I’m not sure that it would be unethical. There’s a generally-accepted fashion for moving out, and it’s this: you make sure all the housemates know, especially the one who handles money; you clarify what the arrangement will be for final rent. You talk to people about it. She’s not done this, and now she’s trying to screw her housemates out of a month of rent.
That’s not cool. They’ve got a right to that last month’s rent. Since they already have her money, that’s a reasonable place to take the last month’s rent from.
It may not be legal, but it seems perfectly ethical to me to say to her, “Look, you didn’t handle this properly. You can live here through the end of the lease, but we’re not returning any moeny to you unless you pay rent through the end of the lease.”
Standard disclaimer. IANAL, IANALandlord, I Was (at one time) A Tennant.
Since we’re now in the land of hazy verbal agreements rather than written contracts, the sensible question is: What did you tell her she was paying?
If you told her the rent was $X per month and there was an $X security deposit, and she gave you 2X, it seems to me you led her to believe she was paying a security deposit rather than another month’s rent.
I’d be very hesitant to claim she didn’t pay a “legal security deposit” if she can claim you told her it was a security deposit and then didn’t turn it over to the landlord. You can’t have it both ways.
Define “formal.” Which one of you is the “formal” property manager? Which one of you was designated by the landlord to approve the tenants, maintain the property and collect the rents on the landlord’s behalf?
Let’s face it. The four of you decided to get a new roommate. Nobody signed anything, and you do agree that she announced her intentions to move out (just not the way you think she should have.)
With nothing in writing she’a on a month to month and there is no establish procedure for her giving notice. You could keep her deposit, but if she takes you to court I think you’re sucking wind. Sounds like a cheap lesson for the other 4 of you, get in in writing.
I think this is just one of those things that happens. It’s pretty rare that a household of young folks breaks up without at least one person feeling screwed. Get on her case about finding a short-term sublease. or try to make a deal where she comes back and does the move-out cleaning or something. But don’t let it get your blood pressure up. It may well just be a loss and that’s one of the shitty things about being a young reneter and one of the risks of a shared houehold.
No, I think what’s not ethical is calling it a security deposit in the OP and now saying it’s not really a security deposit after I showed a cite saying he couldn’t keep the security deposit.
A last-month’s-rent-due-at-signing (in addition to a security deposit, which is standard), is pretty rare, at least in these parts. If that’s what it was intended as, it wasn’t spelled out clearly (nor was anything else). If I handed my roommates a “stack of money” upon moving in, I’d assume it was a security deposit, since those are nearly universal and a last month’s rent isn’t.
If he accepted an unearmarked “stack of money” at move-in, then it’s either a security deposit, which must be returned or a last-month’s rent which shculd not or a simple stack of money, for which his roommate should recieve goods and services in roughly equal value. What did she recieve for her stack o’ money?
I agree her actions are not cool, but it’s the rest of the roomies’ faults for not getting things clear and in writing, including how she should break their non-existant arrangement.
Yes, I still think the ethical thing for you to do is simply to eat it.
Well, your cite notwithstanding, that depends on what that payment was intended as security for. Usually it is spelled out in a lease, and leases can call a deposit at the inception of the agreement a “security towards last month’s rent,” in which case the term “security deposit” might have a different meaning than simply a “damage deposit.” And here again we have a situation where as the landlord, Richard was apparently very vague as to the nature of the “security” or “guarantee” the tenant was providing. Given that nothing is in writing, I don’t find anything unethical about holding onto monies left as “security” or a “guarantee” if a sublessee bails on their rent obligation, given that that may very well have been one of the things they were attempting to “guarantee” when asking for the deposit.
That might depend on what jurisdiction he’s in. In California, Richard Parkeris the landlord of the sublessee.
Technically, this sublessee is a month-to-month tenant, and in most jurisdictions is only required to provide 30 days notice of intent to vacate, however, there’s usually a requirement that notice be given in writing, which didn’t happen here, so a case could be made that her notice wasn’t proper and she’s still responsible for the last month’s rent.
However, the actual person who’s ultimately responsible for the rent being paid is the roommate who moved out, but who is still on the lease!
Depending on the jurisdiction, this is not true. For example, in Madison, a month-to-month tenancy requires 28 days notice of termination from either party. I think this is a fairly standard provision of municipal rental ordinances. If she gave notice “a few weeks ago” meaning fewer than 28 days, then she may not have given proper notice. She also may be required to give that notice directly to the landlord as opposed to the roommates, depending on whether one of the current roommates is an authorized agent of the landlord for purposes of renting the apartment.
Having gone through a rather nasty court battle over a “security deposit” I paid under similar circumstances, my feeling is that it isn’t worth it over 20% of a month’s rent. Pay it and chalk it up to life’s lessons learned.
Oh, I also meant to include the following cite, as well. From the California Tenants Guide to Residential Tenants’ and Landlords’ Rights and Responsibilities Refunds of Security Deposits:
[quote]
California law specifically allows the landlord to use a tenant’s security deposit for four purposes:[ul][li]For unpaid rent;[/ul][/li][/quote]
So if you’re in California, you can keep the security deposit with a clear conscience.
Month to month renting, you give the month’s notice, you get to leave without being on the hook for more months of rent. The most that can possibly be argued here is that she did not give “appropriate” notice, because it wasn’t in writing or somehow formalized. However, if everyone knew she was leaving, I don’t see how it wasn’t acceptable notice. It’s also true that the rental agreement in the first place wasn’t in writing or formalized, so I don’t think it’s fair to expect that of her when ending the agreement. I think it’s unreasonable to expect her to mention the “I’m not paying” thing, since she’s not renting from you after that date, there should be no expectation that she’d be paying in the first place.
Put me in the “eat the rent, give her the deposit back” camp.
To clarify, I didn’t address the question of how much notice must be given. I was refering to the fact that they did not establish a procedure for who was to be notified. The period of time varies by jurisdiction, generally between 20 and thirty days, w/ 30 days probably being the most common. Some places require that it be in writing and that’s always the best idea in any case. It’s also a good idea to get a receipt stating the date the notice was given/received. Some jurisdictions allow keeping a deposit for unpaid rent, others do not and others recognize whatever the written agreement specifies. In small claims court, w/ nothing in writing, you’re subject to local laws and/or the judges discretion. Going by the facts, as stated in the OP, I think the temp. roomie deserves her deposit returned. IANAL, but I’ve got about 30 years experience as a landlord, in several different jurisdictions, not to mention being a renter in my younger years.
If the original roomate is still on the lease, aren’t they still liable for their share?
IMO, you are not going to get a definite answer as to legal liability. You are pretty firmly in a place where it depends on how aggressive each party chooses to be and, if it ends up in small claims court, who is able to persuade the decision-maker.
This isn’t a legal opinion or anything… but after she gave notice, did you or your other roommates ask her for the last month’s rent, and if so, what did she say? Since it’s bothering you, and she’s moving out anyway, you might as well ask her. Biut don’t hold your breath!
And since you say you don’t intend to try suing her or anything like that (and I agree with you on that), then if she doesn’t pay the last month, you’ll just have to cover it.
The answer to the OP’s question IS a legal opinion. The answer also depends on what state the OP lives in. Generally, these things are pretty much spelled out in the state’s residential landlord-tenant act. For example, in South Carolina, the statutory definition of “security deposit” encompasses applying it to unpaid rent. Look online. IAAL, and this is NOT legal advice, except to the extent that, if you’re all that worried about it, consult a lawyer.