Lease says landlord can keep my security deposit when I move out

May 21, 2014 22:04 by Consumer Ed

Dear Consumer Ed:

I found an apartment I really like.  The landlord wants me to sign a lease that would allow him to keep my security deposit when I move out, even if I stay for the full lease term (one year), give him 60 days' notice that I do not wish to renew the lease, and there are no damages to the apartment.  Is that legal?

Consumer Ed Says:

No, that's likely not legal.  Under Georgia law, if a tenant gives proper notice and vacates the unit without owing any rent or damages, the landlord must return the full security deposit to the tenant within thirty days.

A security deposit is a form of security (typically money) that the tenant gives to the landlord at the beginning of the lease.  It's meant to protect the landlord if the tenant vacates the unit without making required payments, or if the tenant damages the unit beyond normal wear and tear.  A security deposit can include damage deposits, advance rent deposits and pet deposits, but it does not include non-refundable fees or amounts that are applied toward payment of rent, services or utilities provided to the tenant. Application fees or deposits to hold an apartment until you actually sign a lease are not considered security deposits, and are usually not refundable if you choose not to move into the unit.

Under Georgia law, a landlord who owns more than ten rental units or who has a management agent should place your security deposit in a bank escrow account, used only for security deposit funds.  The landlord must let you know in writing the location of the escrow account.  Instead of an escrow account, the landlord has the option of posting a bond with the superior court in the county where the rental unit is located.  The bond is to make sure security deposits are returned to tenants if the landlord goes bankrupt or if the property is foreclosed.

Additionally, under Georgia law there is a process that landlords should follow before collecting your security deposit at the beginning of the lease, and prior to returning any portion of the security deposit owed at the end of the lease:

 

  • At the start of the lease and before paying a security deposit, the landlord should give you a complete list of any existing damage to the unit for you to keep for your records.  Before moving into the unit, you have the right to inspect it to make sure the list of existing damage is accurate. Both you and the landlord should sign the list of existing damage - this will show what damage existed at the time you moved in.
  • Within three days after your lease ends, the landlord should inspect the unit and compile a list of any damage done to the unit during your lease beyond normal wear and tear.  The landlord should include the estimated dollar value of the damage that he intends to withhold from your security deposit (if any).  You have the right to inspect the unit within five days after the end of the lease to check the accuracy of the landlord's list.  If you agree to the damage listed, both you and the landlord should sign the final damages list.  If you refuse to sign it, you must state in writing the items on the list that you do not agree to and sign the statement.  If you dispute the accuracy of the landlord's final damage list, you can take the landlord to court to try to recover the portion of your security deposit withheld.
  • Within 30 days of the end of the lease, the landlord must return the security deposit.  If any portion of the security deposit is withheld, within 30 days of the end of the lease the landlord should provide you with a written statement listing the exact reasons for retaining the amount, and a refund (if any) of the difference between the security deposit you paid and the amount retained.

 

You may wish to seek legal advice if your landlord improperly keeps any part of the security deposit which should be returned to you. If the landlord keeps the money without proper cause, he would be required to return the amount withheld, and may have to pay an additional penalty.

A Few Tips When Signing a Lease:

 

  • Before paying any deposit or fee, get in writing what the payment is for and under what terms the payment will be refunded.
  • Ask if any application fee or holding deposit charged will be applied to your first month's rent or to your security deposit if you sign a lease and move in.
  • Always get a receipt for any deposit or fee that you pay.
  • If a fee is refundable, ask the landlord to put that information on the receipt.
  • Remember, your written lease should clearly set out your responsibilities and the responsibilities of your landlord. It provides the best protection for both of you, so make sure to read it carefully before signing it, and keep a copy of it in a secure place.
  • Educate yourself! The Georgia Department of Community Affairs offers information and general advice to Georgians with questions about residential landlord/tenant issues in The Georgia Landlord Tenant Handbook, which can be found at https://www.dca.ga.gov/housing/HousingDevelopment/programs/downloads/Georgia_Landlord_Tenant_Handbook.pdf.  It's a good source of information and answers many frequently asked questions.

 


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Can I get out of my apartment lease due to serious mold problem?

January 6, 2014 20:12 by Consumer Ed

Dear Consumer Ed:

I recently moved to a new apartment from out of state.  I put in a service request with the property manager because the carpet in my son's room was very wet and smelled of mold.  After looking at the apartment, the property manager realized that the mold issue was serious.  I explained that I would be out of town for four days.  She said when I returned I would have to move out immediately and that she would show me another unit.  The problem is that they began the work the day before I returned home by knocking down the wall and exposing the mold.  They were well aware that I had a dog in the house, and part of our agreement was to wait until I returned home before beginning the work.  I am concerned about the effects that high exposure to this mold might have had on my dog.  Also, who is responsible financially for moving me into another unit?  Having just relocated to Georgia, I have no friends or family who can help me move.  I called management to complain about the work being started before my return, but no one has called me back.  At this point, I am so unhappy with the management here that I just want to get out of my lease. What can I do?

Consumer Ed Says:

The first thing you may want to do is consult the Landlord-Tenant Handbook , which can be found on the Department of Community Affairs' website. The Handbook has a discussion of "constructive eviction", which may be a way for you to get out of your lease. There are two things necessary to show that there has been a constructive eviction:

 

  • the landlord's failure to repair has made the unit an unfit place for the tenant to live; and
  • the unit cannot be restored to a fit condition by ordinary repairs. 

 

This is quite possibly what is going on with your apartment.  Your landlord and/or its agent, the property management company, failed to make the repairs necessary to prevent a serious mold issue from developing; now, this mold problem is so extreme that you need to move to a different unit.  However, your lease is for the specific unit into which you originally moved, not for a different unit.  The property manager may be showing you other units as a convenience or so that he or she doesn't lose a rent-paying customer, but unless your lease specifies that you are obligated to accept a reasonable alternative apartment in the event of a constructive eviction, you may not be under any obligation to continue renting from this company.  However, you should consult an attorney before taking any definitive action.

With regard to the effect of the mold on your dog, you probably have no recourse unless your dog is acting differently than usual (not eating or drinking, sneezing/wheezing, listless, etc.).  Limited natural exposure to mold spores is a part of everyday life, and is typically not a health threat.  However, prolonged exposure to elevated levels of mold spores is what can cause a reaction in otherwise healthy individuals (animal or human).  On the other hand, it's always possible that your dog could be hypersensitive to mold spores, and could experience serious health reactions despite only minor exposure to mold.  Common reactions include nasal stuffiness, eye irritation, wheezing, or skin irritation.  If you believe your dog has become ill from the mold exposure, you should contact a veterinarian, and then, if the vet can confirm the dog's illness was caused by the mold, speak to an attorney to explore your options for legal action.

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Following foreclosure, can new owner raise tenant's rent?

May 14, 2013 17:54 by Consumer Ed

Dear Consumer Ed: 

The house we rent was foreclosed on and then sold by the bank. There are still 6 months left on the lease and the new owners want to raise the rent and get a new security deposit (even though our original deposit was not returned). Is this legal?  If not, whom should I contact to resolve the issue?              

Consumer Ed says: 

The Protecting Tenants at Foreclosure Act (PTFA), a federal law, specifically addresses your issue.  The PTFA was signed into law on May 20, 2009 and protects tenants when the property they rent is sold at a foreclosure sale.  The Dodd-Frank Wall Street Reform and Consumer Protection Act extended the PTFA protections until December 31, 2014.   Even though the PTFA is a federal law, it still applies to state court eviction proceedings.

If you originally entered into your lease before the notice of foreclosure, then the new owners bought the property subject to your rights as a tenant.  In other words, your lease did not end when the property was sold at foreclosure, and the new owners must recognize your original lease.  If the new owners will not use the house as their primary residence, then they must allow you to stay in the house and pay rent until the end of your original lease.  However, the new owners only have to give you 90 days’ notice to vacate the property if they are in fact going to occupy the house (you’d still have 90 days to vacate, even if there were less than 90 days remaining on your lease).

While you remain in the house (either for the remainder of your lease or for the 90 days), the new owners cannot raise your rent or require a new security deposit.  You will still have to pay rent, but you will pay the same rent required under your original lease to the new owners of the house.  If you don’t pay rent, the new owners can go to court to have you evicted; they can also have you evicted if you stay in the house after your lease expires (or after the 90 days’ notice period).
 
If the new owners continue to insist that you pay additional rent and/or an additional security deposit, you should contact an attorney to address your specific case.  The State Bar of Georgia (404-527-8700 or 800-334-6865) can give you information to help you locate an attorney, or you could contact your local Georgia Legal Services Program office (www.glsp.org).  You may also pursue an issue with your landlord on your own through the local magistrate court.  In the event you cannot afford an attorney, you may want to contact an organization that deals with landlord-tenant disputes, like Atlanta Legal Aid (www.atlantalegalaid.org).

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