Ask Sam: If I sue my landlord to get my security deposit back, will I have to pay his legal fees?
You'll only have to cover your landlord's legal fees if he wins in court.
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My landlord claims he can’t return my security deposit because of damage to the floors. There is no damage, and I may have to sue him in small claims court to get my money back. There’s a clause in my lease that says if we ever go to court, I’d have to pay his legal fees. Is that enforceable?
You only have to pay your landlord’s legal fees if he wins the court case—and he likely wouldn’t because it sounds like he hasn’t followed the law for security deposits, says Sam Himmelstein, an attorney at Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations.
“Due to changes to the law, it’s much easier to get your security deposit back now,” Himmelstein says.
The Housing Stability and Tenant Protection Act, passed in 2019, includes new requirements for landlords when a tenant’s lease ends. First, they must arrange an opportunity before the tenant moves out to do an apartment inspection and identify issues that could be a reason to withhold the security deposit. Then, they must give the tenant an itemized list of these issues. Finally, they must return what remains of the security deposit, if anything, within 14 days.
“If your landlord didn’t do this, they have no defense,” Himmelstein says. “They have to return the entire deposit, even if you did cause damage to the apartment.”
Note that landlords can’t withhold security for normal wear and tear—for example, holes in the walls from hanging pictures, chipping paint, and so on.
And it’s always helpful to take photos of any damage you notice in the apartment that you did not cause, so that it can’t be held against you when you move out.
To get your deposit back, you can sue your landlord in small claims court (as long as the deposit is less than $10,000.) However, there is another option that may be easier: filing a complaint with the state attorney general’s office.
“They will bring both parties together to try to mediate the issue, which we hear anecdotally is effective,” Himmelstein says. “I usually recommend this over small claims court, where you might have to make multiple court appearances and hire a process server if the papers that the court sends the landlord are not received. It can also be difficult to collect your money, even if you win.”
But if you do opt for small claims court, you probably will not be on the hook for your landlord’s legal fees.
“Most leases have a clause that states if your landlord sues you and wins, you have to pay their fees, which is enforceable,” Himmelstein says “But you only have to pay if they win—and if you win, the landlord has to pay your fees.”
The state Real Property Law stipulates that if there’s a legal fee clause in a lease like the one you describe, it’s reciprocal. And given that your landlord has not followed security deposit law, it’s most likely that if you sue, you’ll not only win and get the deposit back, you’ll also recover your attorney fees as well.
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Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.
