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Ask an Expert: Can my landlord keep my security deposit because I broke my lease?

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By Teri Karush Rogers  |
February 8, 2011 - 12:31PM

Q. If I break my lease but find a qualified tenant to take it over, under what circumstances can my landlord keep my security deposit as he is threatening to do? My lease contains these two provisions: 

  • "If Renter carries out all of Renter's obligations under this lease, and if the apartment is returned to Owner at the expiration of the lease term in the same condition as when rented by renter, ordinary wear and tear expected, Renter's security deposit will be returned in full to Renter."
  • "If Renter vacates the apartment prior to the expiration of the lease term, Renter shall be liable for 'use and occupancy' until the expiration of the lease term or until such time as the apartment is re-rented, whichever is sooner."...."Renter shall be liable for all expenses incurred in connection with the re-renting of the apartment, including but not limited to brokers' fees, advertising costs, and cleaning expenses."

A.  According to real estate lawyer Cory Weiss, your security deposit can only be used for expenses incurred by the landlord for costs that are legitimately your responsibility.

"It can't be used merely as a so-called 'penalty' payment for breaking the lease if the landlord doesn't incur expenses," says Weiss.  

Note that if you sublet your apartment (versus assigning the lease), the landlord will hold on to your deposit until the end of the lease, says real estate lawyer Maria Beltrani. You, meanwhile, hold onto the security deposit collected from your subtenant.  If your subtenant damages the apartment and your landlord dings your security deposit, you can then take it out of your subtenant's deposit.

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Teri Karush Rogers

Founder & Publisher

Founder and publisher Teri Karush Rogers launched Brick Underground in 2009. As a freelance journalist, she had previously covered New York City real estate for The New York Times. Teri has been featured as an expert on New York City residential real estate by The New York Times, New York Daily News, amNew York, NBC Nightly News, The Real Deal, Business Insider, the Huffington Post, and NY1 News, among others. Teri earned a BA in journalism and a law degree from New York University.

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