Common Security Deposit Questions

Common Security Deposit Questions admin Wed, 05/20/2020 - 05:51

These are some of the most common questions people have about security deposits in Maine. You can click on each question to expand that section and learn more. This classroom goes into more detail in other sections, but you should start here if you have any general questions about security deposits in Maine.

This video covers some basic tips and things you can do before you move in, while you live somewhere, and when you move out to help you get your security deposit back.

What is a security deposit?

A security deposit is money you give to your landlord when you move in. It is a way for the landlord to make sure they will be paid if you damage the property or don’t pay rent. Your landlord can use it to cover any unpaid rent or damages. You may not use your security deposit to cover your last month's rent unless your landlord agrees.

You should get your security deposit back after you move out, unless there is damage to the property or you owe your landlord for rent.

What if my landlord asks for a surety bond instead of a security deposit?

A surety bond is very different from a security deposit. A surety bond is something you buy from a surety company. When you move out of the rental, if you still owe your landlord money, or if there are damages to the apartment, the surety company will pay your landlord. The most important differences are:

  • You will not get your money back from the surety company, even if you don’t owe your landlord anything.
  • Your landlord can only give you the choice to use a surety bond. They cannot force you to buy a surety bond. It is your choice!
  • The amount of the surety bond can’t be more than two months’ rent. If you use a surety bond and a security deposit, the total of both of these cannot be more than two months’ rent.
  • If the surety company has to pay your landlord they can sue you for the amount of money they had to pay. This means that even though a surety bond might be cheaper up front, you could end up paying for the bond, and having to pay the surety company what you owed your landlord.

How much can my landlord charge for a security deposit?

Your landlord cannot charge more than two times your monthly rent. If you live in subsidized housing your security deposit should be much less. Check with your local housing authority.

If you live in a mobile home park your landlord cannot charge you more than three times your monthly rent. Read more about some of the different security deposit laws in mobile home parks in the final section of this page.

Does my landlord have to give me back my security deposit?

Yes, except in certain cases, your landlord has to give you back your security deposit in full.

The only reasons your landlord can keep all or part of your security deposit are:

  • There are damages to the property that aren’t just ‘normal wear and tear’
  • You owe the landlord rent when you move out

 

Your landlord can deduct these costs from your security deposit. If these costs are less than your security deposit your landlord still has to return the money that is left over. If these costs are more than your security deposit your landlord could sue you for the difference.

What happens if I have roommates and we all pay part of the security deposit?

Here are some of the most important things to know about security deposits when you are living with roommates:

Usually, the security deposit stays with the property. This means that if you move out before the lease is over, your part of the security deposit will still be held by the landlord. The landlord might choose to give you back your part of the security deposit at that time, but they don’t have to. You will need to work out with your roommates what will happen to the security deposit at the end of the lease.

If the property is damaged everyone who lives there is responsible. This means that the landlord can use your part of the security deposit to pay to repair damage done by your roommates or their guests. The landlord can do this even if none of the damage is your fault. You will not be able to get that money back from your landlord, but you may be able to take your roommates to court to get your part of the security deposit back.

What’s the difference between ‘damage’ and ‘normal wear and tear?’

To get your Security Deposit back you need to show that you did not cause any damages to the apartment, house, or mobile home that is beyond ‘normal wear and tear.’

Normal wear and tear does not have an exact definition under the law, but it means the kind of small things that happen in any home over time. Some good examples include small marks on the walls or faded paint. Household fixtures wear out over the years, and just because something breaks after normal use doesn’t mean you have caused ‘damage’ to the home. It doesn’t matter how well you take care of the property you rent, these things are bound to happen, and your landlord can’t use your security deposit to fix them.

Some common examples of normal wear and tear are:

  • Chipped, faded, or dingy paint
  • Worn carpets
  • Scuffed or worn finish on a wood floor

 

Damage is something more serious than normal wear and tear. Damages are things that will need to be repaired before someone else can move in. Some common examples of damages are:

  • Kids’ crayon art on the walls
  • Holes in the walls
  • Broken windows
  • Leaving trash in the home
  • Leaving the rental extremely dirty

You are only responsible for damages caused by yourself, your family, or your guests. If the property is damaged by a storm, fire, vandals, or something else beyond your control, tell your landlord immediately. It is a good idea to keep some kind of written record of the event. A report from a fire marshal or the police are two examples.

Your landlord can’t use your security deposit to repair damages that were already there when you moved in. Learn more about how to make sure you don’t get charged for these damages in the ”Before You Move In.” section of this guide.

Does my landlord have to pay me interest when returning my security deposit?

It depends on the type of housing you live in.

  • If you live in subsidized housing check your lease or ask the housing authority. Your landlord may have to pay interest on your deposit.
  • If you live in a mobile home park you can learn more about your rights in the final section of this page.
  • If you don’t live in a mobile home park or subsidized housing, your landlord does not have to pay you interest on your security deposit unless you both agreed to that.

What if my landlord sells my building?

If your building is sold (or passes to a new owner for any reason) your landlord must give your security deposit to the new owner or give it back to you.

If your landlord gives it to the new owner, your landlord must mail you a notice telling you:

  • The new owner’s name
  • The new owner’s address, and
  • How much money was passed on to the new owner

 

Your former landlord can take money from your security deposit to cover any rent you owe, or any damage repaired before the building was sold.

Does my landlord have to keep my security deposit in any special account?

Yes. Landlords have to keep security deposits in an account that is separate from their other accounts and safe from their creditors. This includes protecting your money from a lender who forecloses on the building and from a trustee in bankruptcy. If you ask, your landlord must tell you the name of the bank where the money is deposited and the account number. Get a sample request form here.

What if my landlord doesn’t follow these "separate account" rules for protecting my deposit?

If your landlord doesn’t protect your security deposit, you can take them to court. If you win you can get:

  • "actual damages" (your losses)
  • $500, or
  • one month's rent

 

The court will award whichever amount is highest, plus your court costs. Also, the court can order the landlord to pay your lawyer's fees.

What kind of notice do I have to give if I am moving?

If you do not give the right notice your landlord may try to charge you for time after you move.

Tenants at Will (No written lease)

You must give your landlord a 30 day written notice that you are moving. You should make a copy for yourself to keep. You and your landlord can agree to a shorter notice period, if your agreement is put in writing.

It is a good idea for the period on the notice to end on a day rent is due. This way you can avoid owing any rent for the following month.

If you give a notice that you will be moved out by the 1st of a month but you do not return the keys until the 7th, your landlord may charge you for 7 days of pro-rated rent (the amount of rent you would owe if your monthly rent was divided up by day). You owe rent for any day that you are occupying the rental.

If you have a lease

Look in your lease for a section about moving out and giving notice. Your lease will probably tell you what kind of notice you must give. If your lease is for a set term, such as one year, the lease may not allow for moving out before the term is up. In that situation you should talk with your landlord and see if you can reach an agreement about moving out during the lease term.

What will happen to my security deposit if I move before my lease is up?

  • Your landlord can’t automatically take your security deposit or charge you a flat fee for ending your lease.
  • If you move before your lease is over, your landlord still has to follow the process described in “When should I get my security deposit back?” below.
  • Your landlord may try to charge you rent for the rest of the lease term. This will depend on what the lease says. However, your landlord must try to re-rent your apartment as soon as they know you are moving out. If they re-rent your apartment right away they can only charge you for the time you were there and the time it took to find a new tenant. This is why it is a good idea to give your landlord as much notice as possible that you will be moving.

Put this notice in writing and keep a copy for yourself.

Note: If you are moving out because your landlord has “substantially breached” the lease, the rules are different. You must give the landlord a written 7-day notice served in-hand or, after 3 good faith efforts, mailed by first class mail, with a copy left at the landlord's home. The notice should explain your intention to leave based on the landlord's failure to uphold their duties under the lease. If you follow these rules then the lease ends and you have no more responsibilities under the lease.

When should I get my security deposit back?

How long does my landlord have to refund my security deposit?

If you have a lease your landlord must give you your security deposit back within 30 days after you move out and return the keys.

If you are a “tenant at will” (you don’t have a written lease) your landlord must give you back your security deposit within 21 days after you move out and return the keys.

What if my landlord is keeping some or all of my deposit?

If your landlord is going to keep some or all of your security deposit they need to send you a letter telling you why they are keeping your deposit.

If you have a lease your landlord must send you this letter within 30 days after you move out. If you have a lease, check to see what it says – it might give your landlord less time to do this. If there is nothing in the lease about this, or if the lease gives more than 30 days, then your landlord has 30 days to return the deposit or send the letter. If you have a lease, the legal limit is 30 days.

If you are a “tenant at will” (you don’t have a written lease), your landlord has to send this letter within 21 days after you move out.

How will my landlord send me my deposit or letter?

Your landlord will send your security deposit, or the letter telling you why the deposit is being kept, to your ‘last known address.’

Make sure you give your landlord your new address or an address where you know you can get mail so they can send you your deposit or letter. You can also get your mail forwarded from your old address. You can ask about this at your post office, or set up forwarding online at the USPS website.

What if my landlord doesn’t give me my deposit back, or doesn’t send me a letter?

Visit the “What Can I Do if I Don’t Get My Security Deposit Back” section of this guide to learn more about what to do if this happens.

If I take my landlord to court, can they sue me?

Keep in mind before you sue that if you owe your landlord money, they will probably bring these claims against you to counter your claim for return of the deposit. So, if you owe your landlord more money than they owe you, suing in court is probably not a good idea. On the other hand, if your landlord sues you, you can "counterclaim" for return of your deposit and for any other money they owe you.

I live in a mobile home park. Does all of this apply to me?

Almost all of this information applies to you. Here are some important differences:

  • Your landlord can charge up to 3 times your monthly rent for your security deposit
  • Your landlord has 21 days after you move out to return your security deposit, or send a letter explaining why they are not returning all or part of your security deposit.
  • You must get your security deposit back with interest. The amount of interest is either:
    1. The amount of interest your landlord actually earned on your security deposit, or
    2. A ‘reasonable amount of interest’ on the security deposit. A ‘reasonable amount’ is set as the amount of interest the Federal Reserve Bank sets as the yearly interest rate on a 6 month certificate of deposit (CD). This interest rate could change every year.

 

For more information on your rights as a tenant in a mobile home park, visit our page on Rights of Maine Renters: Mobile Home Parks.

Published: August 2016

PTLA #633