First: You may not be a lawyer, and you certainly are not my lawyer, and any advice received in this thread will not be considered to be “legal advice” in any way.
If I understand the concept of tacit acceptance correctly, I believe I have just come out ahead in the following situation:
I gave notice to my landlord on February first of my intent to move. I have a month-to-month lease, with only 30 days notice required. Most of the reason I am moving (back home) is because I am flat broke. I cannot afford to pay February’s rent ($900) right now, so along with my letter of notice I included a $50.00 check and the offer that they simply keep my $850 deposit on the house, I made up the difference, and if that was acceptable to them we’d call it square.
This is in the full knowledge that the only thing that would otherwise happen is they return my deposit (the house is in even better shape than when I took it over) and I turn right around and give it back to them to pay the rent for February. I offered to cut out the middle man, so to speak.
Yesterday, they cashed my $50.00 check. Does this not imply tacit acceptance of my offer as outlined clearly in my notice letter?
I’m no lawyer, but I believe it is sometimes the case that a state will prohibit tenants and landlords from using the security deposit as rent in this fashion. I could be wrong about that.
Having done some property management, in my area it was common to have it spelled out quite clearly in either or both the lease and the security deposit agreement that one absolutely cannot use the security deposit to cover rent in this way (proactively and amicably, as opposed to forfeiting the deposit in order to recover past due rent). It may seem like a small detail to you, as a tenant who has every reason to expect the full return of the security deposit, but this kind of policy protects the landlord from a number of problems, and even protects the tenant from a couple of possible abuses.
Furthermore, there was language in our leases that made it clear that accepting a portion of a rent payment was not in any way acceptance of payment in full, nor did it relieve the tenant from the requirement to pay rent in full. This clause seems to be specifically adapted to prevent construing “tacit acceptance” as having any standing (which it may not have anyway, even in the absence of the clause, depending on state laws).
We had these policies in our properties (those I managed and the one I owned), and never had a problem enforcing them.
That said, I have heard of just that sort of arrangement occurring between a tenant and a friendly landlord - but it was clearly a matter of the landlord being willing to take the risk (and the tenant, for that matter, because if the landlord later changes their mind, it would be very difficult to prove the “friendly agreement” should stand up in court).
Couldn’t it be argued that the landlord was just trying to minimize his damages? There is evidence that his tenant has financial concerns and $50 is better than nothing. The checks value potentially will decrease with time.
Oh, and another thing: even if everything is hunky-dory between you and the landlord with a deal like this, it could still hurt you in terms of applying for apartments in the future.
One of the few questions we were legally allowed to ask in order to determine whether a tenant was a good one or not was, “Did they get their security deposit back?” Another such question is “Did they ever fail to pay their rent on time?”
Even if there is a friendly arrangement to have the security deposit cover the last month’s rent, the landlord may feel bound to tell the truth when answering the above questions to future potential landlords.
I do hope you manage to work things out - it’s a crappy position to be in, that’s for sure. And, even in the worst case scenario, plenty of people manage to recover from a blip in their rental record in time. Good luck to you.
That said, no. An existing obligation cannot form consideration for a new contract. You have, in essence, made an offer to pay the balance of your rent from your deposit. However, as a general matter your landlord has no obligation to treat the deposit as your money until you relinquish the premises. It’s money that is escrowed to cover damage to the home.
Because you are obliged by your lease terms to provide security (the deposit), the deposit isn’t yours to offer. It’s a prior obligation. Obviously, it will become yours again in the future, but your landlord may not know that.
Now, in Florida (and I would guess most jurisdictions) your landlord’s acceptance of a partial rent payment constitutes a waiver the right to evict you for the month for which the rent payment was made. Since eviction proceedings take a long time and you are leaving at the end of the month this is really irrelevant.
That doesn’t mean the landlord can’t seek the balance of the rent due, plus interest and any statutory penalty that may apply. Since we are talking about less than one month’s rent, there is virtually no point in suing you for the balance, of course.
No. And I’ve never lived in a place where the security deposit could legally be used for rent. If you’re just renting a room in a guy’s house vs renting from a large complex, you might get away with it. That doesn’t mean it’s legal.
Thanks for the replies, guys. I appreciate the insight.
To clarify, this is a house in St Louis, owned by a couple who now live in California. They are not professional property managers, and not particularly professional as landlords. They pulled the lease off the internet.
Bolding mine. I am defaulting on the lease agreement. I have been up-front with them about it since I realized I was losing both roommates and would be forced to find either a) a VERY cheap new place or b) move back home. The roommates signed the lease as well, but that hasn’t seemed to matter at all to the landlords.
It seems to me that they wrote the use of the security deposit in this way directly into their own lease. I could still be wrong, but really it doesn’t matter. I am moving back into my dad’s home, and he said “Just come on home. Screw a good rental reference from those yahoos, I KNOW you won’t pay the rent.”
It doesn’t sound like it matters, but I’m not sure that “unpaid charges” is intended to mean “unpaid rents” as opposed to other charges that might fall on the landowner as a result of breach.
Don’t be surprised if you receive a bill for a late charge for your unpaid (but covered by security deposit) rent and any other damages or cleaning that would have been covered by your deposit.
And that is fine. I am concerned with paying them what I actually owe them, I have no intention of leaving them completely stuck with any bills. I just can’t right now, plain and simple. 2/3 of my household income is moving out, as we speak. So for me alone, it came down to paying rent or moving out - and with no one to help me with rent and utilities for the months after, the choice was clear.
I know you’re broke, but take a moment to consider that defaulting on the lease (including by not paying rent and expecting the landlord to keep your security deposit) could have long-lasting impacts on your credit rating, depending on how your landlord handles the situation. Having a record of defaulting on a lease could make it difficult for you to rent your next apartment, whenever that may be, because as it stands you’re basically proposing to stiff your landlord out of the money that they would use to fix any problems (other than normal wear) in the apartment after you vacate it. This May or may not be a credit report problem that could follow you around for years.
If you’re broke and not paying rent is the only option, I guess the die is cast. If there’s something you could do to pay rent until you get your security deposit back, that would certainly be less risky to your ability to get credit (or a lease) in the future.
I lease a house from an individual. They do not report to any credit agencies, and I am moving back into my family home. I am lucky to be in a situation where once I am gone, I am able to wash my hands of it all.
There aren’t any issues above normal wear and tear in the house, and it will be cleaned before I leave it. The landlord himself was here less than two months ago, and told me himself that he saw no issues upon inspection that I would be responsible for paying for.
So, no. I am not some piece of crap trying to squirm away from what I owe. I just got ditched by two roommates at once, and offered the best solution I could.
