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Can I use my security as a pro rata stay (month to month tenant)

New York, NY |

I am a month to month tenant. My landlord requested his place back after 11 years. No beef at all. I advised him that I would need until the end of September. I found a new place, but the place will not be ready until the on or before the middle of october. I told the landlord and he said he was ok with that. I would like to know if I can use my security deposit as m pro rata rent per day charges until I move out. Is this something that landlords would agree to?

Attorney Answers 3


  1. Dear New York Tenant:

    No. Not usually. Landlord generally recognize the lease obligation that the security deposit is held in trust for the tenant for the duration of the tenancy, and that the landlord is compelled by the lease to return the entire amount held in trust, to the tenant, upon the tenant's moving out, and subject to assessing damage to the premises, beyond ordinary wear and tear, and in the event of damage, applying the security to the repair of the damage, and refunding the balance if any, at that time, to the tenant.

    If the landlord somehow may invade the security for rent, then the landlord loses the ready and at hand security that the tenant has a fund on deposit for repair of damage to the rented premises.

    A New York landlord is not required in ordinary circumstances to pro-rate rent. In New York, the rent is always due in full for the entire month, on the rent due date, even when the tenant moves out mid-month.

    Your landlord may agree with you to refund a portion of the rent for October 2013, but New York law, does not compel that he do so. If you have had a cordial relationship, there is no harm in making the request, but ordinarily, a landlord will take the entire month rather than lose income for the month.

    Good luck.

    The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.


  2. Generally a security deposit is to compensate the landlord for damage not to pay rent. If the landlord agrees it's okay.

    I am a former federal and State prosecutor and have been doing criminal defense work for over 17 years. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.


  3. I agree with the previous answers and if you can convince the landlord that is a good idea maybe.
    Good Luck

    Please be sure to indicate the best answer. If this answer was helpful, please mark as helpful below. Only. If and until you and I sign an Agreement for Legal Services, I am not your attorney. These answers are provided for informational and/or novelty purposes

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