questions & answers

Question: The Landlord/Property Management Co. has with held $858.33 of our security deposit. They say we are responsible for the Re-Rent and Commissions associated with finding a new tenant. My husband lost his job, we continued to pay rent (even though we were not living in the house) so we didn't break lease. They were able to locate a new renter after two months and returned a portion of our Security Deposit, but say we are responsible for these fees. They would have had these fees in June when our lease was up. Is it legal for them to use our deposit for expense associated with the new tenant?

Answer: The crucial question in this sort of situation is whether or not the tenant (you and your husband) terminated the rental agreement before it expired. If the tenant simply chose not to renew an expiring agreement, then the landlord is required by law to return the entire deposit (less any deductions for material damage caused by the tenant and/or as specified in the lease) (A.R.S. 33-1321). Only if the tenant breached the tenant’s obligations under the rental agreement – for example, by breaking the lease and thus making the landlord find a new tenant to rent the dwelling during the original lease period – may the landlord keep whatever part of the deposit is required to cover the landlord’s actual and reasonable re-renting costs (A.R.S. 33-1321). (The landlord has a “duty to mitigate,” which means that the landlord must make a genuine effort to re-rent the dwelling in as cost-effective a manner as possible.) A tenant who believes that a landlord is refusing to return all or part of a deposit without a lawful reason may deliver to that landlord – either by hand or by certified mail (return receipt requested) – a formal letter requesting the immediate return of the appropriate amount and providing a mailing address. If the landlord then fails to return the appropriate amount within 14 business days, the tenant has the right to sue for the return of that amount plus twice as much in monetary damages (A.R.S. 33-1321).