Table of Contents
Overview of New York Security Deposit Laws
As a landlord in New York, it is crucial to understand and comply with the state’s security deposit laws. These laws protect both landlords and tenants, ensuring a fair and transparent process when it comes to handling security deposits. Security deposits are consideration held in trust for the landlord’s benefit. The obligation to pay rent is separate from the obligation to deposit security. This comprehensive guide will walk you through the key aspects of New York security deposit laws, including understanding the laws themselves, conducting pre-move in and pre-move out inspections, what a security deposit covers, and how to provide proper notice to tenants. By following these best practices, you can stay compliant and avoid disputes with your tenants.
Security deposit laws and regulations outline the requirements for handling security deposits, including the maximum amount a landlord can charge, how the deposit must be stored, and the process for returning the deposit to the tenant. It is essential to familiarize yourself with these laws to ensure compliance and avoid potential legal issues.
Residential Landlord’s Checklist
- Pre-occupancy inspection
- Notice to tenant of amount of security deposit received and the name and address of bank deposited.
- Determine if money should be deposited in bank account and if it should be interest bearing
- Confirm the security deposit is limited to 1 month’s rent
- 1–2 weeks prior to vacating, landlord must inspect after providing 24 hours notice
- Provide written statement of deductions or return deposit with 14 days of tenant vacating
New Owner Requirements
Send notification within 30 days following the closing or other transfer of title to the fact that there is no record of a security deposit for said leased premises and that unless the tenant within thirty days after receiving notice provides him or it with documentary evidence of deposit, the tenant shall have no further recourse against him or it for said security deposit.1 The new landlord should also notify the tenant in writing of the name and address of the banking institution it will be deposited in and amount of the security deposit.
Seller Owner Requirements
A landlord who sells their property or assigns the lease must notify the tenant by certificated mail or registered mail that the security deposit is being turned over to the new owner or assignee.2
Commercial versus residential security deposits.
Commercial tenant security deposits are generally not regulated except for a few circumstances. Commercial tenants in buildings with six or more residential units, it must be deposited in an interest bearing bank account. Further, the security deposit should not be commingled with other funds of the landlord and it should be transferred to new ownership or an assignee when the landlord changes. Other than those requirements, the parties to a commercial lease are fee to negotiate the terms of the security deposit.
Laws and regulations relevant to security deposits.
Can a municipality adopt different security deposit requirements?
Generally no. A county is not permitted to adopt laws that are inconsistent with the general law.3
Do New York security deposit laws apply to contract a made in New York for property outside of New York?
Yes, if the contract is silent on choice of law.
The protection afforded by section 233 should apply to funds deposited in New York as security under a contract of lease made in New York between corporations created by New York, even though the real property which is the subject matter of the contract is located elsewhere. In so holding, we are not giving extraterritorial operation to the statute, but, on the contrary, in accordance with the evident legislative intent, we are permitting it to govern the rights and liabilities of corporations created by New York, under a New York contract, with respect to a New York subject matter, viz., the security deposit.4
Security deposit type and amount
How much can a landlord ask for security deposit?
If the tenancy is residential, a landlord may only hold one month’s security. If the tenancy is commercial, the amount of security may be determined by the parties.5
Can a landlord accept a security deposit in anything other than cash or a cash equivalent?
Yes, a landlord can accept other forms of payment other than case or a cash equivalent. However, if the building which the tenant occupies contains 6 or more units, the security deposit must be deposited in a bank account.
When does a landlord have to deposit a security deposit in an interest bearing bank account?
A landlord is generally not required to pay interest on a security deposit unless there is an agreement stating otherwise. An express provision in a lease requiring the deposit of the tenant’s security in an interest-bearing account is enforceable to require payment of legal interest on the security.
If money is deposited or advanced is for the rental of property containing six or more family dwelling units, by statute the person receiving such money must deposit it in an interest-bearing account in a banking organization within New York State. The statute requiring that a down payment “for the rental of property containing six or more family dwelling units” be deposited in an interest-bearing account in a bank applies both residential and commercial tenants. The account must earn interest at the prevailing rate earned by other such deposits from banking organizations in the area.
Who receives the interest on a security deposit in New York?
The interest accrued on a security deposit in New York belongs to the tenant (or person whom made the deposit) and is held in trust or paid annually to the tenant by the landlord unless applied. GOL § 7–103(2).
Can a security deposit be placed in the account of one landlord when there are multiple landlords?
No. The security deposit should be deposited in an account bearing both landlord’s names and should not be a personal account (it should be a trust account). Depositing the security deposit in an account which is the personal account of a single landlord is conversion and each of the landlord’s will be subject to damages.6
Can security deposits be deposited in a bank in a state other than New York?
No. Security deposits must be deposited in a New York bank account.7
Pre-move in inspection
A pre-move in inspection is a critical step in the process of renting a property. This inspection allows both the landlord and tenant to document the condition of the property before the tenant moves in. By conducting a thorough pre-move in inspection, landlords can:
- Identify and address any existing damage or maintenance issues before the tenant moves in.
- Establish a clear record of the property’s condition, which can be helpful in resolving any disputes that may arise during the tenancy.
- Protect themselves from potential liability for pre-existing damage or issues.
When conducting a pre-move in inspection, landlords should be sure to:
- Document the condition of each room, including walls, floors, ceilings, doors, and windows.
- Check and test all appliances, fixtures, and systems, such as heating and cooling.
- Take detailed photos or videos of the property to provide a visual record of the condition.
- Have the tenant sign and date the inspection report, acknowledging their agreement with the documented condition of the property.
Providing proper notice to tenants regarding their security deposit is an essential part of staying compliant with New York security deposit laws. The notice should include:
- The amount of the security deposit and any interest earned.
- The bank where the security deposit is held, the account number, and the interest rate.
- A reminder of the tenant’s obligation to maintain the property and the potential deductions from the security deposit for damages or unpaid rent.
- Information on the process for conducting a pre-move out inspection and the timeline for returning the security deposit.
Landlords should provide this notice to tenants annually and at the end of the tenancy, as required by law.
Does a bank stamp on the back of a security deposit check satisfy the banking information notice requirement under General Obligations Law § 7–103(2)?
No. The stamp on the back of the security deposit check which bears the name of the bank when the check is deposited does not satisfy the “notify in writing” requirement of General Obligation Law § 7 103.8 Failure to rebut the inference of commingling will result in the immediate return of the funds without any offset against the cost of repairs or breach of the lease.9
Can a tenant bring a lawsuit against a landlord for failing to provide notice in accordance with GOL § 7–103(1) without breaching the lease or having the lease expiring?
No, a tenant does not have standing commence a lawsuit based on failure to the landlord to give tenant notice in accordance with GOL § 7–103(1) without evidence of commingling or the termination of the lease.10
What happens if my landlord doesn’t provide security deposit banking information required by General Obligations Law § 7–103?
A landlord who does not provide the tenant the name and address of the banking institution and amount of the security deposit to the tenant is presumed to have commingled the funds.11
Does a landlord have to deposit security deposits with a bank?
It depends. A landlord is not required to deposit a security deposit with a bank if the building has 6 or more residential housing units. A landlord is permitted to keep the security deposit in their personal possession as long as it is not commingled with the landlord’s personal funds. In Finnerty v Freeman12 the court held that the landlord may keep the security deposit in cash in a sealed envelope in their private possession as long as it was not commingled with the landlord’s other monies).
If a landlord puts the security deposit banking information in the tenant’s lease does that comply with General Obligations Law § 7–103(2)?
No. A landlord must provide provide a tenant the security deposit information after depositing in the bank.
In this case, given that the statutory notice was not given, the court must find an adverse inference of commingling arises from the record. Such a determination cannot be defeated by the defendant’s argument that this obligation was satisfied because the lease set forth the name of the bank and its address; such a lease provision does not and could not waive the requirement that the statutory notice be given after the deposit is made.13
What happens if my landlord does not respond to a tenant’s request for security deposit information?
If a tenant request information about their security deposit being held with the landlord and the landlord does not provide such information, the tenant will have the presumption in court that the security deposit was commingled. The landlord can rebut the presumption by showing the security deposit was not commingled.14
Move-out inspection and list
A pre-move out inspection is a crucial step in the process of ending a tenancy. This inspection allows both the landlord and tenant to assess the condition of the property and identify any damage or issues that may impact the return of the security deposit. By conducting a thorough pre-move out inspection, landlords can:
- Identify and address any damage or maintenance issues before the tenant vacates the property.
- Establish a clear record of the property’s condition at the end of the tenancy, which can be helpful in resolving any disputes over the security deposit.
- Provide the tenant with an opportunity to correct any issues or damages before moving out.
When conducting a pre-move out inspection, landlords should follow a similar process as the pre-move in inspection, documenting the condition of the property, taking photos or videos, and having the tenant sign and date the inspection report.
What if a landlord does not provide an itemized checklist of deductions prior to the tenant moving out?
The landlord must return the tenants security deposit and maybe liable to the tenant for punitive damages. See GOL § 7–108.15
Returning the security deposit.
In New York, security deposits must be returned within 14 days after the tenant vacates the property. If deductions are made from the security deposit, the landlord must provide an itemized statement of the deductions and the remaining balance, if any.
A security deposit serves as a financial safeguard for landlords, protecting them against potential losses or damages caused by tenants. In general, a security deposit can be used to cover:
- Unpaid rent or fees, such as late fees or utility bills.
- Damage to the property beyond normal wear and tear.
- Cleaning costs if the tenant does not leave the property in a clean and habitable condition.
- Costs associated with re-renting the property if the tenant breaks the lease early.
It is important to note that security deposits cannot be used to cover normal wear and tear or routine maintenance. Landlords should clearly communicate to tenants what the security deposit covers and the expectations for maintaining the property.
What happens if a landlord does not return a residential tenant’s security deposit within 14 days of moving out?
The security must be returned even if there is damage to the apartment or a valid reason to withhold the security deposit.16
What is the standard to determine the value of property when drawing down on a security deposit?
Damages are determined by examining the actual value of the damages items, their original cost, previous deterioration or depreciation, new damage, and evidence of present reasonable value.17
Does a landlord need to maintain detailed records of security deposit accounts?
Not technically, however, it is advised that landlords do maintain do so to avoid commingling and inappropriately withdrawing amounts any amounts being held in trust.
As was noted above, the court directed the respondents to maintain detailed records with regard to the rent security deposits. However, Article 7 of the General Obligations Law does not require that such records be kept. Thus, that portion of the order must be stricken.18
Can a landlord draw down on a tenant’s security deposit if the security deposit was commingled?
No. A landlord must return the security deposit to the tenant if they commingled the funds.
Thus, we reject defendants’ argument that a tenant’s right to a refund of a security deposit for commingling is subject to offset to the extent a landlord incurs justifiable repair costs after the tenant vacates. Plaintiff had a cause of action against defendants for conversion as soon as the deposit was placed in a commingled account, which cannot be defeated by defendants’ post-lease use of the commingled deposit for repairs.19
What if the lease does not specify the purpose of how the security is to be used?
If a lease does not specify the purpose of the security deposit, it will be assumed it was made generally for the purpose of securing the purpose of the lease.20
May a landlord retain a tenant’s security deposit if they did not perform a pre-occupancy inspection?
Yes. Noncompliance with the general obligations law requiring a landlord to provide the tenant with written notice of tenant’s right to request an inspection before tenant vacates the apartment does not mandate forfeiture of landlord’s right to retain any portion of the security deposit; the forfeiture penalty only applies to failure to provide an itemized statement of the repairs that landlord claims are required and justify retention of part or all of the security deposit.21
Is the tenant entitled to a return of their security deposit if the landlord does not have a valid certificate of occupancy?
No, a tenant is not entitled to a return of their security deposit because the landlord is in violation of Multiple Dwelling Law Section 301. The court’s have noted that an illegal tenancy cannot be used as a sword instead of a shield.22
Is the landlord entitled to retain a tenant’s security deposit if the landlord did not provide notice to inspect the premises?
No. Landlord could not withhold tenant’s security deposit to cover alleged property damage and cleaning fees after tenant vacated apartment, where landlord failed to comply with requirements of General Obligations Law that she provide written notice to tenant of her right to inspect premises in landlord’s presence and itemized written statement before tenant vacated or opportunity to cure alleged defective conditions.23
Security deposit laws burden of proof.
How should the New York security deposit law be construed by the court?
The New York security deposit law should be strictly construed against the landlord. The law’s restriction upon a landlord’s treatment of a rental security deposit is recognized as a firm and fixed feature of New York landlord-tenant relations.24
Who has the burden of proving the amount withheld by the landlord was reasonable or unreasonable?
The burden of proof if the landlord retains any portion of the security deposit is on the landlord.25
Litigating security deposit issues.
How long does a tenant have to commerce a lawsuit against their landlord for conversion and breach of fiduciary duty?
The statue of limitations for conversion and breach of fiduciary duty is 3 years.26 For conversion, the statute of limitations begin to run when the cause of action accrues. A “continuing harm” is not available in a conversion cause of action and must lie in another cause of action. In other word, the statute of limitations begins to run when the destruction or conversion first occurs. The statue of limitations begins to accrue on a breach of fiduciary claim when the fiduciary openly repudiates his or her obligation – when damages are sustained. A breach of fiduciary duty can be a “continuing harm.”27
What elements must a tenant establish in a security deposit case where the landlord withholds the security deposit for alleged damages?
- The tenant paid a security deposit to the landlord;
- The tenant caused no damage beyond wear and tear;
- The tenant made a demand for the return of the security deposit;
- The landlord refused to return the security deposit.28
Can a tenant be evicted for not depositing a security deposit with the landlord?
Yes, a landlord can commence a holdover proceeding to remove the tenant from the premises if they do not provide a security deposit as required by the lease. However, a non-payment proceeding may not be commenced to for failure to deposit a security deposit because it is not rent.29
Can a tenant cure a default for non-payment of rent by applying the security deposit?
No, a tenant may no cure a default by applying their security deposit to the arrears. However, if the landlord commingled the funds and the tenant was entitled to have it returned it could be applied as payment of rent because the landlord waived their interest in the deposit.30 But see Love Lori, Inc. v. Love31 where the court held that the landlord’s commingling of the funds and failure to notify tenant of the name of the banking organization where the deposit was held entitled the tenant to the recovery of its security by way of a “setoff against petitioner’s judgment for rent.
Commingling of security deposit funds
Is the commingling of a security deposit with personal funds conversion?
Yes, the commingling of a security deposit with personal funds is conversion. General Obligations Law § 7–10332. If the landlord fails to segregate properly a security deposit, or mingles it with personal funds, the law views such as an illegal conversion of the security deposit.33 Landlords owe a duty not to commingle the deposit with his own funds, and upon breach of that duty, he forfeits his right to avail himself of the deposit for any purpose.34
What should a landlord do is they commingle a tenant’s security deposit?
The landlord has an obligation to return the security deposit to the tenant.
A tenant has an immediate right to the funds in the event of a commingling.35 Nor is the tenant’s non-compliance with the lease terms a defense to a landlord’s breach of his duty in this regard. Thus, there is no merit to defendant’s argument that plaintiff’s alleged repudiation of the lease agreement “relieved [him] of any obligation to maintain [advance] rent and security deposits in a segregated account”. Subdivision 2–a of General Obligations Law § 7–103 requires that security for deposits and advances on the payment due on a contract for the rental of real property be placed in an interest bearing account. . . While section 7–103 does not provide any specific penalty or sanction for its breach, it has been uniformly held that a commingling constitutes a conversion and entitles the tenant to the immediate recovery of his deposit or advances.36
Does a landlord have to pay interest to a tenant who’s security deposit was commingled?
Ultimately, of course, if landlord cannot prove that the security deposit was segregated prior to the termination of the lease, it will be required to repay those monies to tenant, with interest.37
If the commingling of a security deposit violates GOL § 7–103 but doesn’t violate the lease, is there a breach of lease?
No, just because their is a violation of statute, that does not qualify for a breach of lease.38
Can a landlord cure the commingling a security deposit?
Yes, a landlord can cure the commingling of a security deposit as prohibited by GOL § 7–103(1).39
Interest on security deposit
If a tenant has not violated the lease, can the landlord choose to apply their security deposit interest to rent without the tenant’s consent?
No. The tenant must agree to how the security deposit interest in excess of one percent should be applied. GOL § 7–103(2-a). The landlord and tenant must agree that the interest will be paid annually to tenant, at the end of the tenancy, or applied to rent.
Is a jury waiver valid in an action or proceeding concerning a security deposit?
Sometimes. Jury waivers are void if they involve claims concerning personal injury or property damage. Typically, security deposit actions involve premises damage, thus a jury waiver would be void.40
Can a landlord be charged punitive damages for improper security deposit deductions?
Yes, if a deduction is not permitted by GOL § 7–103, its deduction form the security deposit may subject the landlord to punitive damages. In Ian M. Swenson v Westminster Management, LLC and 118–120 East Fourth Owner the court assessed punitive damages to the landlord because they charged a $250 move-out fee, which is not allowed under any law or regulation.
Is a commercial tenant entitled to the return of rent if they paid in advance if the tenancy is terminated early?
Absent terms in the lease that state otherwise, rent paid in advance is not refundable.41
What is a landlord’s creditor status to a tenant’s security deposit?
A landlord is considered a protected creditor of the security deposit and provided priority over other creditors.42
If a tenant is not informed that the lease was assigned to another landlord does the statute of limitations run under General Obligations Law § 7–105?
No, the statue of limitations does not run if the tenant is not provided actual notice.43
Does General Obligations Law § 7–105, relating to the turn over of security deposits to the incoming landlord, provide for a private right of action?
Yes, General obligations law § 7–105 does provide for a private right of action for successor landlords and tenants to sue the prior landlord for failure to turn over the tenant’s security deposit.
Does a new landlord have an obligation to transfer tenant security deposits to their own trust account?
Yes, new landlord’s have a fiduciary obligation to transfer tenant security deposits and maybe obligated to commence litigation for security deposit turnover.44 Landlord’s of rent stabilized tenants are liable to the tenant, whether they receive the security deposit from their predecessor, for any sum of money due under the lease or by law the tenant is entitled to concerning the security deposit.45 Landlord’s or non-rent stabilized tenants are liable if have actual knowledge the security deposit was not transferred.46 A landlord has actual knowledge of any security deposit which is (i) deposited at any time during the six months immediately prior to closing or other transfer of title in any banking organization pursuant to subdivision two-a of section 7–103 of this chapter, or (ii) acknowledged in any lease in effect at the time of closing or other transfer of title, or (iii) supported by documentary evidence provided by the tenant or lessee as set forth in paragraph (c) of this subdivision.
What are a landlord’s remedies if seller does not turn over security deposits?
A new landlord is entitled to demand the seller fund an escrow account in amount of 1 month’s security deposit. Further, the new landlord may commence an action against the seller to turn over the security deposits. General Obligations Law § 7–108.
Can a security deposit be used as liquidated damages in the event of lease break?
Yes, if it is reasonably proportional to the damages caused.47
How much are punitive damages for a violation for the security deposit law?
Any person who violates the provisions of this subdivision shall be liable for actual damages, provided a person found to have willfully violated this subdivision shall be liable for punitive damages of up to twice the amount of the deposit or advance. General Obligations Law § 7–108.
Is a landlord entitled to any fees for maintaining a security deposit?
Yes. A landlord who maintains a security deposit in an interest-bearing account is entitled to keep the first 1% of interest as an administrative expense. General Obligations Law § 7–103(2).
Best Practices for New York Landlords
To stay compliant with New York security deposit laws and maintain positive relationships with tenants, landlords should follow these best practices:
- Familiarize yourself with all aspects of New York security deposit laws, including the requirements for handling, storing, and returning the deposit.
- Communicate clearly with tenants about the purpose of the security deposit, what it covers, and the expectations for maintaining the property.
- Conduct thorough pre-move in and pre-move out inspections to document the condition of the property and address any issues or damages.
- Provide proper notice to tenants regarding their security deposit, including the amount, interest earned, and the bank where the deposit is held.
- Promptly return security deposits within the legally required timeframe and provide an itemized statement of any deductions.
How to Get Deposit Back from Landlord
For tenants seeking to get their deposit back from their landlord, it is essential to follow the appropriate steps and communicate with the landlord throughout the process. To increase the likelihood of receiving a full security deposit refund, tenants should:
- Provide proper notice of their intent to vacate the property, as outlined in the lease agreement.
- Schedule a pre-move out inspection with the landlord to assess the condition of the property and address any issues or damages.
- Leave the property in a clean and habitable condition, removing all personal items and trash.
- Provide the landlord with a forwarding address for the return of the security deposit.
- Follow up with the landlord if the security deposit is not returned within the legally required timeframe.
De Salvo v Faerber, Silberman & Co., 189 NYS 147 [App Term 1921]; Broadway Renting Co. v Wolpin, 59 Misc 199 [App Term 1908]; Weinberg v Greenberger, 47 Misc 117 [App Term 1905]; Ritter v Berkley House, 37 NYS2d 183 [NY Mun Ct 1942] ↩︎
Paramount Group v. Guardian 30th St. Corp., N.Y.L.J., 1/15/92, p. 23, col. 2 (Civ. Ct., N.Y. County) ↩︎
Love Lori, Inc. v. Love 85th Street Pharmacy, Inc., N.Y.L.J., 3/20/98, p. 25, col. 3 (App.Term, 1st Dep’t) ↩︎
Kelligrew v Lynch, 2 Misc 3d 135(A) [App Term 2004]; LeRoy v Sayers, 217 AD2d 63 [1st Dept 1995]; Sommers v Timely Toys, Inc., 209 F2d 342 [2d Cir 1954]; McMaster v Pearse, 9 Misc 3d 964 [Civ Ct 2005] ↩︎
In re Perfection Tech. Services Press, Inc., 22 AD2d 352 [2d Dept 1965], affd. Matter of Gen. Assignment for the Benefit of Creditors of Perfection Tech. Services Press, Inc., 18 NY2d 644 ; Kelligrew v Lynch, 2 Misc 3d 135(A) [App Term 2004] ↩︎
Spagnoletti v Chalfin, 131 AD3d 901, 902 [1st Dept 2015]; Sommers v. Timely Toys, Inc., 209 F.2d 342 at 343 (2d Cir.1954); 160 Realty Corp. v. 162 Realty Corp., 113 N.Y.S.2d 618, affd. 280 App.Div. 762, 113 N.Y.S.2d 678 [1st Dept.1952]; Shandwick USA, Inc. v Exenet Tech., Inc., 192 Misc 2d 280, 281 [Civ Ct 2002];Harlem Capital Ctr., LLC v Rosen & Gordon, LLC, 145 AD3d 579, 580 [1st Dept 2016] ↩︎