Dealing with a Tenant Who Doesn't Pay Security Deposit

By Robert Griswold

Question: I have a rental property where one of the tenants just moved in last month and signed a six-month lease. These are standard, boilerplate lease forms that we got from Professional Publishing. At the time this tenant signed the lease we asked him for first month, last month and a security deposit. He told us he couldn't pay the entire security deposit or anything towards the last month's rent before moving in. But he indicated that he was getting paid his commission soon and would pay the rest of the security deposit and the last month's rent in two weeks.

This turned out to be a lie, but we did eventually get the last month's rent from him more than two months after move-in. Once again he promised to pay the balance of the security deposit, but he never comes through. He has now become surly when we ask him for the deposit. The rental agreement he signed with us clearly stated that he would pay first, last and security. Since we now have a last month's rent from him, at what point can we consider him to be in breach of the lease and give him a 30-day notice?

Landlords' attorney Smith replies:

Your tenant is in violation of the lease agreement under which he holds possession of the premises. The lease violations you refer to subject the tenant to possible eviction. However, you may not use a 30-day notice. The 30-day is used to terminate month-to-month tenancies only, not leases. In this case you have a 6-month lease. You will need to legally serve a notice to perform or quit, which requests payment of the balance of the deposit or possession of the premises within a limited number of days after service. If he fails to comply with the legal notice, you will have the right to evict despite the six-month lease.

Your retention of the last month's rent should not defeat your right to evict based on the lease violation. In residential cases, I encourage my landlord clients to get away from collecting "last month's rent," and, instead, call the entire amount held "security deposit." This gives you your maximum use of the money for rent, cleaning and damages. By calling the entire sum "security deposit," you are not required to give credit against rent before the tenant vacates.

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