Q: What can I do if my tenant used their security deposit as their last month’s rent and then left the property damaged? — Brenda

A: The security deposit is supposed to be used to offset potential damage to your rental property and should not be used as rent.

Many landlords will collect both a security deposit and the last month’s rent when beginning a new lease to avoid this problem. The landlord must keep these deposits in a separate bank account and tell their tenant where the money is held.

When the time comes, the property owner may transfer the advance rent from that account to their “operating” account to be used as rent but may not transfer the security deposit to pay the rent if their tenant falls behind.

In your situation, when your tenant did not pay the final month, you could have demanded payment or started an eviction.

Many property owners opt to do what you did because it seems to make sense only to find the home damaged, leaving them with the choice to eat the cost or sue their former tenant for the repair costs.

There is a common misconception that the tenant is only responsible for repairs up to the security deposit amount. The reality is that tenants are responsible for the cost of repairing any damage they caused.

In your case, you will need to sue your tenant for any unpaid rent and the repairs.

If a landlord does not follow the correct procedure at the end of the lease or does not return the unused portion of the security deposit, the tenant can sue to force their landlord to return the funds.

Finally, if the last month’s rent is being held and the tenant breaks the lease early, the landlord can usually keep the funds to help make up for their tenant’s breach of the lease agreement.

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ABOUT THE WRITER

Gary M. Singer is a Florida attorney and board-certified as an expert in real estate law by the Florida Bar. He practices real estate, business litigation and contract law from his office in Sunrise, Fla. He is the chairman of the Real Estate Section of the Broward County Bar Association and is a co-host of the weekly radio show Legal News and Review. He frequently consults on general real estate matters and trends in Florida with various companies across the nation. Send him questions online at www.sunsentinel.com/askpro or follow him on Twitter @GarySingerLaw.

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