Dear PoPville – Withholding security deposit for “landlord tenant search/selection”?

Photo by PoPville flickr user pablo.raw

Dear PoPville,

I recently had to break a lease, in which the landlord and I agreed that if we were able to find a new tenant prior to her losing any rent, she would return my security deposit (less cleaning fees and minor wear and tear). We did find a new tenant, and she also refunded me a prorated portion of rent.

When she returned my security deposit, she added an expense of “Landlord tenant search/selection.” Is it legal for her to charge me for the fees she has incurred for finding a new tenant? I am thankful I did receive most of my deposit back, but I don’t feel that this charge ($250) seems reasonable to be incurred by a tenant.

42 Comment

  • Simple answer- If it’s stated in your lease then she can do it. If not, then no. Read over the lease you signed.

  • Yes, that sounds legal. You breached a contract, she’s entitled to be reasonably compensated for time spent searching for a new tenant. Presumably that took, what, at least 5 hours? $50 an hour seems reasonable.

    • IANAL, but breach of contract isn’t really so simple. There are underlying laws that govern as well. In many jurisdictions landlords are required to make a good faith effort to find a new tenant in this sort of situation. Absent going to court and proving breach of contract and getting awarded damages … you can’t just claim breach and award yourself damages, which is what might have happened here.

      Of course, this might be governed in the underlying contract, in which case zenalex is right on.

      OTOH, if not necessarily legal, this does seem fair — if the landlord did any work to get the new tenant (Who is “we” in the OP?). They could have just claimed they tried and failed, kept the whole deposit, and the OP would have had to prove that the landlord acted improperly or not in good faith. Tough to prove.

      • Not meant in an argumentative way at all…but the tenant broke the lease. I would assume the lease stipulated the terms if the tenant were to do that (typically forfeiture of deposit), so how would it be difficult to prove?

        $250 seems a reasonable amount to withhold for breaking a lease, when the landlord could have withheld the entire security deposit. I’m assuming here. Was your agreement to refund the deposit in writing? If not, none of it would hold and you’re lucky you got the balance returned.

        • LisaT-

          You’re wrong. Leases in DC are governed both by their terms and by DC law. Under DC law, a tenant can break a lease and not pay the landlord anything, including the security deposit, if the landlord is able to re-let for the same or better price to an equally suitable tenant with reasonable effort. That’s rarely a problem in DC. DC law also makes very clear what you can, and cannot, use a security deposit for — and finding a new tenant doesn’t count. Finally, once the landlord and the tenant here agreed that the tenant could vacate, they had a new contract. The new contract did not include a $250 “new tenant finder fee.”

          Sure the OP is being a whiner and should just suck it up, but strictly from a legal standpoint his landlord is in the wrong.

          • Where’s the consideration for a new contract? Offer, acceptance…consideration.

          • Thanks for pointing out I’m wrong. :p I get it, and am aware of the stipulations on what deposits can be used for (and yes, the “finder’s fee” doesn’t fall within that), but strictly on the agreement side–if it was verbal and not in writing, it’s invalid, correct? From a legal standpoint? That’s what I read in all my landlording materials.

            And just want to point out that being “able to re-let for the same or better price to an equally suitable tenant with reasonable effort” is not easy at all. It takes considerable time and effort. Not saying landlords don’t get that returned, just that it’s not easy to find a good tenant, just like it’s not easy to find a good apartment.

          • Verbal contracts are still contracts.

          • Adam L – this is not the case for contracts related to real estate. Only written contracts are valid for real estate transactions.

        • I think you misunderstood what I saying, because I mostly agree with you. What I meant by “difficult to prove” is that the OP would find it difficult to prove that/if the landlord didn’t make a good faith effort to re-rent the place before claiming the security deposit.

          If the lease stipulated the terms that would absolutely govern, within whatever limits are set by DC law.

          All considered I agree with you — they were lucky to get something back, and $250 seems reasonable.

          My only points are that (a) landlords just can’t claim all or part of the security deposit. Even if someone walks from the lease, their ability to claim the deposit or $250 thereof is constrained by law. In this case, if the outgoing tenant did all the work to find a replacement, I think that this fee is unwarranted if there’s nothing in the lease about it. (b) There are a number of statutes surrounding property rentals that can pre-empt the leasing contract if it’s poorly written.

          • “Even if someone walks from the lease, their ability to claim the deposit or $250 thereof is constrained by law.”

            Which is why it basically seems leases are a waste of time and paper in this city.

            “In this case, if the outgoing tenant did all the work to find a replacement, I think that this fee is unwarranted if there’s nothing in the lease about it.”

            Completely agree. Wasn’t clear to me whether the tenant or the landlord actually did the finding, but regardless the landlord can’t take out the “finder’s fee.” I do think they should be entitled to something for the tenant breaking a lease, but we all know DC doesn’t work that way (technically). Everywhere I’ve ever lived if you break your lease, you forfeit your deposit (whether legal or not). We had to after five years in our first apartment in DC, and we forfeited our deposit. The deposit is pointless otherwise.

            And Adam L, sorry, but I disagree. Keeping one’s word is important, but a verbal “contract” is ripe for a he said/she said argument which would always come down to what’s in writing.

    • Yep. He broke a lease. He’s lucky she didn’t charge him for the rest of the term of the lease.

  • The amount of time you would spend getting your $250 back makes it not worth it regardless of whether it was legal or not.

    Nothing is illegal unless it is cost-effective to pursue a remedy.

    You could threaten to sue in small claims court if it was not in your lease, but I am fairly sure tenant courts would find this to be reasonable.

  • You are a complete total whiner. You are not living with your parents any more.

    You broke a contract. The $250 is a smal price to pay. Keep your promises and your contracts in the future.

  • “Minor wear/tear” and cleaning fees are not allowed to be deducted from your security deposit, so you could go after her for that, too.

  • T

    It depends on whether your landlord actually incurred $250 in costs in re-renting the apartment. Ask her for a receipt showing the costs (i.e., advertising costs, etc).

    For future reference — your landlord has an obligation to mitigate losses (i.e., re-rent) if you break the lease and can’t just keep the security deposit willy nilly as a “punishment” if they didn’t actually incur losses.

    • Um, good luck with that. When I asked my landlord for receipts (she was withholding $800 of my deposit for unspecified “repairs” to the bedroom I had rented) she threatened to take me to court/file a retaining order against me. Let’s face it– this stuff if usually impossible for them to prove. I think the OP made out really well in this scenario!

      • If you know how strongly DC tenants’ rights skew in the direction of tenants, you could have almost surely gotten that money back. Sounds like she was bluffing to see if you knew the laws. It’s amazing what some landlords will try to get away with.

        • I should have mentioned this was in Alexandria. May not be relevant to the issue at hand. I also forgot to mention that she was threatening to sue me for slander because I’d discussed the issue with a lawyer friend.

          • Jeez! Slander? This lady clearly has no idea what the meaning of slander is. You talked to a lawyer friend? So you consulted with an expert? And that’s illegal? Man, I want her address so I can egg her house.

          • T

            sounds like she was an idiot.

          • Yeah, I know. She clearly had a screw or two loose, and I suspect she was using the money to fuel her compulsive shopping habit. I ended up letting the issue go because I don’t think it’s wise to anger a crazy person, but in retrospect I should have taken her to court.

          • it also sounds like she got her way. so maybe bully is a beter description than idiot.

          • So it was in VA. Which has absolutely nothing to do with the law in DC. So you could have saved us that.

          • Yes, bully is correct. A lot of sleazy landlords pull stunts like this because they know most people have enough stress to deal with during their move, and won’t have the time or energy to fight for a few hundred dollars. When I was renting I’d go into it assuming I wouldn’t get the deposit back, and if I did it was a nice bonus.

          • I think my point is still valid that most security deposit withholdings are bullshit things that can’t be validated with a receipt, and the landlord is going to give you a really hard time about getting them to you. That doesn’t mean the laws in this state or that state don’t entitle the tenant to them, but it’s not going to be a piece of cake.

      • Do read up on the law. The law is pretty clear on what you can and can’t do. After 8 years in my last apartment my landlady tried a bunch of nonsense on my and I told her up front exactly what the law said and that I expected to see receipts for the the expenses she expected from me. I got my security deposit back, with interest, as the law says.

  • I just went through a two-month back-and-forth with my landlord about breaking the lease early because she decided to move someone in that the rest of the roommates felt uncomfortable with and did not approve of. After many consultations with a retail broker at my company, it first comes down to how your lease is worded. If it’s not in your lease, you have the right to contest it. That being said, tenants’ rights in DC are incredibly strong, and you can get away with the worst things as a tenant…

    I threatened to take my landlord to DC Landlord-Tenant Court. I mentioned that it would generally require several face-to-face meetings in DC, and that DC tenants usually win. My landlord backed down, because who really wants to haggle over a small(ish) fee?

    So if your lease doesn’t mention a landlord tenant search/selection fee, she’s in the wrong, and you can broach that with her, if you so choose. Depends on how far you think your landlord would go–would they show up at landlord-tenant court, or would they just refund your money to avoid the hassle?

  • diploj

    DC law may be skewed toward the tenant but that doesn’t mean it would be easy or worthwhile to get the rest of your $$ back. I think you were lucky to get as much of your deposit back as you did. Rather than looking at this from the point of view of law, I recommend thinking about it in terms of Karma. You broke a lease, your landlord had to do extra work because of it, and she charged you a moderate fee because of it. That seems fair. If you fight back against fair, it’ll bite you in the butt somewhere down the road.

    • Exactly. People like to trot out the “DC law may be skewed toward the tenant” line but in reality you have to be very tenacious to get the landlord to play by the rules. Ultimately the time spent getting the $250 back will not be worth the $250 unless you’re a professional bum with nothing better to do.

      • Disagree… it’s a simple filing of papers downtown. That’s it… it’s fairly easy and costs very little if I remember correctly. Did it once after breaking lease due to horrible living conditions and within days of filing my old landlord got his summons and chose to simply just pay back the deposit…

  • Oh come on…You broke the lease. You are enormously lucky they didn’t make you pay the (thousands) likely remaining on it.

    Is your time free? The landlord, while they should have been crystal clear about charging you for the time spent, doesn’t have to accomodate you for free.

    $250 seems like a gift for you being able to break a legal contract and go about your business in your own time frame.

  • I agree with those people who said that unless the tenant search fee was in your lease, it is not allowable. Neither is a cleaning fee or deductions for minor wear and tear a standard fee to be deducted from a security deposit(although additional fees could be written into your lease, in which case you have to pay for what you agreed to). I’m pretty sure most Dear PoP authors about tenant-landlord issues are told to consult the DC office of the Tenant Advocate. So, please do that and report back the answer! It appears they are planning a “live” Q&A (which actually sounds as if they are only taking Qs beforehand via email, lol) tomorrow:

  • Sue her in small claims court if you don’t like it. The process is relatively easy.

  • Breaking a lease doesn’t make you a bad person, but I do think it’s fair for the landlord to charge a small, reasonable fee based on expenses the incur to re-rent the unit very quickly — so that you don’t have to pay the whole month’s rent.

    Let’s say the landlord has a choice between taking off work to rent the place in an expedited manner, or using a less aggressive approach that could cost you more money overall in prorated rent or loss of the full deposit. I think most people would prefer the landlord do all they can — even if it cost a little more in “fees” — in order to best mitigate the tenant’s losses.

    The right thing to do is whatever is cheapest for you overall, not what is most clearly legal based on a narrow reading of the law.

  • It’s really not necessary to sue her to get the money back. You should sit down with a lawyer (and trust me, the legal field in DC right now has some of the highest unemployment out there – you can find one fresh off the bar exam who will do this in exchange for a couple of beers or a decent dinner – I know several personally) and write a “demand letter”.

    Simply state that there are no provisions in the lease that provide for the $250 fee AND there is no provision in DC law to use the deposit to pay for minor wear and tear. Provide copies of the appropriate sections of landlord / tenant law with the letter. At the end, inform her that DC law does state that the deposit has to be returned within x timeframe (I think its 30 days, but it might be 45 or 60), that there are ## days remaining in that period, and that you expect the balance of the deposit to be returned by that date. Send it certified mail. There is a 90% chance that this alone will get you the rest of the money back in a check within a week. And, maybe a new lawyer friend to have beers with sometimes as an added bonus.

    If that fails, go downtown and file a small claims court suit yourself (about $40) and pay for a process server to deliver it to her ($30-$50). Sit back and wait. This brings your chance of getting the money back up to about 98%. *Most* people would settle rather than risk spending more. If she’s in that 2%, then you have to decide if you want to fight it that badly. But the first option takes two hours, is done over tasty beers, and costs a whopping $3.

    • diploj

      …and have fun using her as a reference when you go rent your next place.

      • This is exactly why I won’t ever rent to an attorney….too much of a hassle dealing with amateur perry masons who think they know it all and would bring up every single issue they could to make the relationship terrible.

      • @diploj – I don’t think many people actually list their real former landlord as a reference when they rent a new apartment. Most of the time, they just give a friend’s name and phone number and ask them to play the part of doting landlord. I’ve called landlord “references” before and they didn’t even know the address of the property they “owned” – understandable if it’s supposedly a big rental operation, but if this was supposedly your basement tenant and you lived upstairs??

  • These issues are governed by laws, not the ramblings of people who respond to blogs. Learn your legal rights and responsibilities, and don’tistrn to the dolts on this board who don’t know jack about the laws.

  • OP here. Wanted to say that i didnt intend to chase after the money – i was geniunely curious and i know that amount of money isnt worth my chasing, as takng time to file paperwork and appear in court would cost more than the amount in question.

    To add some additional detail – none of those details were wirrten in the lease. The landlord and i both worked to find a new tenant. The landlord did not spend actual money on the search, but did spend significant time for which she attempted to attach a dollar amount.

    Again, i am thankful i was able to get out of the lease – without going into detail the unit was an unsafe situation for my gf and i (no fault of the landlord, we just needed to get the hell out of the area to feel safer).

Comments are closed.