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Can the landlord keep my deposit when I never moved in and the move-in date is in 2 months?

New York, NY |

The landlord is refusing to give my deposit back because they say it's a fee for holding the place. I gave half of 1 month's rent for a deposit on June 26th, 2012 and the move-in date is September 1, 2012. The next day I found out I had a huge job opportunity in another state and I had a chance to get the job - so I let my landlord know that I stated that I will know for sure in 2 weeks if I will move in and I also said that they can look for another tenant and if they do, they could just give that place to that person. It was all done through emails.

Fast forward today, July 4th, 2012, and I found out I got the job and I no longer can stay at the place. So I let my landlord know that - but now they are refusing to give me that money saying it was a fee for holding the place.

We have nothing in writing except a receipt stating I payed the amount for the deposit, both signed and dated. And all my proof is through exchanging emails.

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Attorney answers 1


Dear fast forward July 4th 2012:

Congratulations on your job.

The landlord is required to state the type of non-refundable fees you must pay when you sign an apartment application and an agreement is made to hold an apartment for you for you.

A "holding fee" typically as you described, would roll over into the first month rent, but that must be disclosed to you in the apartment application.

You have a valid claim to the return of the "holding fee" if the application did not clearly inform you that the courtesy "holding fee" is not refundable. You should point this out and the landlord may relent.

You could sue for the money in NY Small Claims Court, but you need to file your complaint right away, or you will miss your own date, because you will be at the new job

You may complain to the New York State Attorney General's office about the non-refundable holding fee if the landlord did not disclose this to you in writing when you made your deposit.

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.