Getting your deposit back may be easier if you patch up any wear-and-tear in your apartment before moving out. 

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Question:

I moved out weeks ago and still don't have my security deposit back. I thought my landlord had to return it within two weeks. Can I take him to court?

Answer:

It’s true that your landlord is legally obligated to return your deposit within 14 days, but it’s usually not cost-effective to hire an attorney to take him to small claims or civil court if he misses the deadline, says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph who represents residential and commercial tenants and tenant associations.

First, it helps to understand the laws around security deposits. Changes to the law in 2019 capped the deposit at one month’s rent; the new laws also created specific rules for how and when landlords must return deposits.

In addition, the city’s Real Property Law provides for inspections to be made at the start and end of rental leases: Landlords are supposed to give tenants the chance to have their rentals inspected before they move in, as well as when they vacate. If landlords find that the apartment has been damaged, they are required to give tenants an itemized list of the claims they will deduct from the security deposit.

“I don’t see this complied with much,” Himmelstein says. “But the law says that the landlord has to return the security deposit unless the damage caused by the tenant is beyond normal wear and tear. I advise tenants to patch up holes in the walls, and to paint any damaged areas with a matching paint color if they can. Whatever you can fix, fix, and take pictures or video of every section of the apartment immediately before you vacate, after all possessions have been removed.”

This will help you to push back if your landlord tries to withhold part or all of your deposit. And even if you haven’t had your apartment inspected, your landlord is still obligated to get your money back to you within two weeks.

“Within 14 days of the tenant vacating, the landlord is required to provide you with an itemized statement and return the remaining portion of the deposit,” Himmelstein says. “The burden of proof is on the landlord.”

If your landlord is not cooperating with this law, however, you may find that it is not financially worthwhile to pay an attorney to take them to court and get your deposit back. And suing your landlord in small claims court can be an extremely slow process. There are other options, though.

“The Attorney General has a bureau that mediates these disputes, which we hear anecdotally is pretty effective,” Himmelstein says. “Most of the time it works out. There’s something about being hauled before a law enforcement agency that gets the landlords to comply.” (You can file an online complaint about your landlord with the Attorney General.)

And if you do decide to take your landlord to court over this issue, there’s a chance you could not only get your deposit back, but also recover damages and legal fees.

“Most leases have a clause entitling the tenant to recovering legal fees if they’re successful in suing their landlords,” Himmelstein says. “And if they win, they could also collect damages up to twice the amount of the security deposit.”

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Read all our Ask a Renters Rights Lawyer columns here.


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, Donoghue & 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.

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