Late payment of security deposit by room-mate grounds for eviction?

[neilepi]

I entered into a written agreement with a room-mate which specified that rent would be $750 and security deposit also $750 plus pro-rata payment of $250 for partial month making total of $1750. Unadvisedly (and with regrets) I accepted partial, staged payments of $400 in advance, $900 around time first full month rent due and was willing to accept the balance of $450 on 10/21.

Room-mate did not make the 10/21 payment and today said he would pay November rent on time but balance of security deposit "by end of the year". He is pleading that he does not have the money to pay it now.

Due to my lack of confidence in his ability to meet future rent deadlines and also his untidy/messy habits I am considering cutting the ties rather than get into a long-term problematic situation and am wondering what are our respective rights and obligations.

The agreement we both signed specified a month's notice and defined it as a month-to-month arrangement.

What are my recourses (a) if he persists in not paying the outstanding $450, (b) pays the November rent on or around 11/1? (c) does not pay the rent when it is due.

Could I interpret a larger part of what has already been paid as being security deposit (as opposed to rent) even though I have indicated otherwise in emails?

Can I use security deposit (either partial or in full) to offset loss of rental income due to the fact that his room is such an untidy mess that it is un-showable?

Would I be in a better/stronger/different position going forwards if I did not use the term "security deposit" but simply referred to "first and last months rent"?

Any input and/or advice would be appreciated.

 

[jharris352]

If you have him on a month to month you can "give him notice" and have him out in 30 days. You should give the "security" deposit back. If, in the future you term the security deposit as first and last month's rent, you will not have to give it back but you will not have a security deposit either. Your choice.

 

[neilepi]

Thankyou.

Could I treat the non-payment of the $450 as a breach of contract and tell him to get out (say) by October 31st? And what, if any, would his recourse be he didn't move out so I packed his stuff into boxes and put it in the garage and changed the locks? Could he sue?

 

[Gail_in_Georgia]

No, you cannot pack his things and put them in a garage and change the locks..not without running the risk of having your socks sued off.

New Jersey happens to be a VERY tenant friendly state; they have quite specific guidelines you MUST follow to evict someone.

If you are going to act as a landlord, you need to be familiar with the landlord tenant laws of this state. I've included an easy to review list of some of them. Review the steps needed to evict someone:

http://www.lsnjlaw.org/english/placeilive/irentmyhome/tenantsrights/index.cfm

Gail

 

[jharris352]

What you are talking about is constructive eviction. In most states he can do more than sue: he can have you locked up. Follow the rules as we have outlined them or you will end up in bad shape. Gail gave you a good resource. If the rules say 30 days notice it doesn't mean by the end of October because you want it to. You don't need a reason to give them 30 days notice. You can start eviction in the court for failure to tender the deposit.

I suspect this is more because you don't like your tenant than it is that they have not paid. Be careful.

 

[neilepi]

Thankyou, Gail, for the helpful input. I suspected as much but was iterating what had been told to me by a friend who was the former "lead-dog" in the house for 10 years before he moved out and handed over to me.

It seems to me that, on balance, I am probably better off designating future deposit payments as last month's rent as the risk on non-payment, necessitating me giving a month's notice with the probability of non-payment of (and difficulty in recovering) rent owing would seem to be greater than the risk of damage to the property, bearing in mind that it is just a room-mate situation and I am living in the house full-time.