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Renters Insurance Usually Won't Cover Normal Wear and Tear
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In this way, the prepaid last month's rent would then be brought up to the current amount. If that was not done, then that last month is prepaid at the lower or original rental amount that was first paid. Rent may be taken from the security deposit only to cover a default in rent.
In the case in which a landlord has not properly raised the last month's prepaid rent, there would be no default because the last month's rent is still fully prepaid at the lower rate. Therefore, no money can be taken from the deposit to cover that rent difference. For this and other reasons, prepaying last month's rent usually works more to the benefit of the tenant than the landlord.
Landlords' attorney Smith replies:
It's a good idea to maximize the upfront money given by the tenant to secure performance of the lease or rental agreement. Characterizing a portion as the last month's rent unnecessarily limits the landlord's use of the money at move-out.
Take the example of a trashed apartment. By calling a prepayment the last month's rent, the landlord may not use it to offset damages and cleaning. It may be used for rent and rent alone.
Implementing the last month's rent presents difficulties. The plain intent of the parties should be looked at. A small-claims court judge looking at this case will examine the rental agreement or lease to determine how this issue was dealt with in writing. When the issue has not been addressed in writing, my experience has been that most judges merely credit this sum against the current last month's rent and will recognize the deficit owed.
Still, care in drafting the lease could eliminate this problem. Of course, the landlord will avoid this problem by calling the entire sum "security deposit," which gives the landlord maximum use of the money to include rent, damage and cleaning.
This column on issues confronting tenants and landlords is written by property manager Robert Griswold and San Diego lawyers Steven R. Kellman, director of the Tenant's Legal Center, and Ted Smith, principal in a firm representing landlords. E-mail your questions to Griswold atrgriswold.inman@retodayradio.com. Questions should be brief and cannot be answered individually.
© 2005 Inman News Features
Distributed by Inman News Features
