- Standard Limit / Maximum Amount: One month’s rent (read more)
- What Can Be Deducted: Unpaid rent, Damage caused by the tenant, Utility charges, & Costs of storing or moving the tenant’s belongings (read more)
- Time Limit for Return: 14 days after the tenant vacates the premises (read more)
- Penalty if Not Returned on Time: Double the original deposit (read more)
Purpose. Security deposits are like safety nets. They ensure compensation for any loss that the landlord might incur because of the tenant’s acts. It covers for incidents like damage to the property, termination of the lease without notice or non-payment of rent.
Legal Basics. New York landlords can demand a maximum of one month’s rent as security deposit from which unpaid rent, damage caused by the tenant, utility charges, and costs of storing or moving the tenant’s belongings may be deducted. It must be returned within 14 days after the tenant vacates the premises. Otherwise, the landlord may be made to pay a penalty of double the deposit.
Maximum Security Deposit Charge in New York
New York statutes did not always limit the amount of security deposit that landlords can charge. Now, after the Housing Stability and Tenant Protection Act of 2019 was passed, New York landlords may only charge up to one month’s rent for security deposit.
Note, however, that this limit on the amount of security deposit only applies to non-rent stabilized residential units. Other rules will apply to security deposits given in leases of:
- Units subject to the city rent and rehabilitation law or the emergency housing rent control law;
- Licensed continuing care retirement communities licensed;
- Licensed assisted living providers;
- Licensed adult care facilities;
- Recognized senior residential communities; or
- Not-for-profit independent retirement communities.
Additional Pet Deposits. Under New York’s law, the landlord may ask for an additional pet deposit; however, people with disabilities who use service animals are entitled to full and equal access to housing. Thus, the tenant may not be discriminated against and the landlord may not require the tenant to pay extra to have a service animal. If the service animal causes damage to the rental unit, the tenant is liable to pay for any damages.
The Federal Fair Housing Act requires housing facilities to allow tenants who use service dogs and emotional support animals to have an equal opportunity to use and enjoy their home.
Security Deposit Holdings in New York
New York landlords are prohibited from commingling any security deposit received from any other funds that the landlords have. This is because the security deposit remains the property of the tenant and is only being held by the landlord in trust.
Should the landlord decide to place the security deposit in a bank, it must be in a bank that has an office in New York. Also, the landlord must notify the tenant in writing of the name and address of the bank, and the exact amount of security deposit placed therein that belongs to that tenant. The landlord can choose to put the security deposit in an account that earns interest or does not but whenever earned. The interest will accrue to the tenant.
However, if the landlord receives or is receiving security deposit from tenants of a property that has at least six family dwelling units, the landlord is required to place all security deposits in an interest-bearing account in a New York bank that earns interest at more or less the same rate as other similar accounts. Although not required, a landlord may voluntarily place the security deposit in an interest-bearing account and the same rules would apply as mentioned above.
Allowable Deductions on Security Deposits in New York
The landlord can only use the security deposit when the lease or tenancy has ended or has been terminated. Also, the landlord can only use the security deposit to cover the following:
- Unpaid rent;
- Damage caused by the tenant beyond normal wear and tear;
- Unpaid utility charges provided in the lease; or
- Costs of storing or moving the tenant’s belongings.
However, the landlord cannot deduct from the security deposit the cost of repairs or damage found in the initial inspection.
After the signing of the lease but before the tenant moves in, the landlord must notify the tenant that the latter has the option of having an initial inspection of the unit so they can both determine the exact condition of the unit.
Should there be an initial inspection, the parties must execute a written agreement before the tenant moves in. The agreement should state the condition of the unit and details the existing defects and damages discovered during the initial inspection. The initial inspection agreement may be admissible for evidence regarding the condition of the rental unit for any reason related to the security deposit amount.
Can the deposit be used by the tenant as last month’s rent? Not usually, but it can be done if there is a written agreement between the parties to do so.
“Normal Wear and Tear” vs. Damage in New York
Damage to the property that’s normal wear and tear will not be chargeable to the security deposit. So, it’s important to know the difference between the two:
- “Normal Wear and Tear” only include deterioration of the property that happens when the property is used as it was meant to be used and only when that deterioration occurs without negligence, carelessness, accident, misuse, or abuse by the tenant or the people the tenant brings there. Normal wear and tear can take on the form of gently worn carpets, loose door handles, fading wall paint and flooring, stained bath fixtures, lightly scratched glass, dirty grout and mold that occur naturally.
- “Damage” refers to the destruction that occurs because of abuse or negligence by a tenant during the course of the tenancy. It diminishes the usefulness, value or normal function of the rental unit. It can include pet damage, broken tiles, holes in the wall, broken windows and missing fixtures.
For a more in-depth discussion on the difference, check out our article on Normal Wear and Tear vs Damage here.
Returning Security Deposits in New York
Time Frame: The landlord has 14 days after the tenant vacates the premises to return the security deposit, or what’s left of it after deduction, and the written itemized list of the basis of the deductions that were made.
Failure to Return the Security Deposit on Time: If the landlord fails to return the security deposit and/or the itemized list of deductions within the time allowed, the landlord loses the right to retain or make deductions from the security deposit.
The tenant may bring a small claims lawsuit. The court depends on the county, for example, New York City a tenant would file with Small Claims Civil Court, counties like Suffolk or Nassau tenants may file in District Court. The maximum amount a tenant may sue for in New York is $5,000 and the limit is $3,000 in village and justice courts.
Also, if the landlord did not have good reason to withhold the security deposit or part of it (e.g. if the landlord misused the security deposit or simply refuses to return the same), the landlord may be made to return the amount withheld plus a penalty of double the security deposit.
Security Deposits and Tax Filing in New York
How the security deposit will be treated tax-wise depends on whether or not the landlord gets to keep it (or part of it).
Taxable Income: Security deposits are not automatically considered income when the landlord receives them. The IRS advises to not include security deposits as income if the landlord may still be required to return the same. They only become taxable income when the landlord no longer has any obligation to refund them. For example, if the security deposit was given in 2020 but was only forfeited in 2021, then the landlord should only include it as income in 2021.
Reporting Security Deposit as Income: Whether or not security deposit should be reported as income and when to do so will depend on what it is being applied to or used as. Below are three simple rules the IRS has suggested to follow:
- If the deposit is forfeited due to a breach of the lease or applied to unpaid rent, then the amount kept should be declared as income in the year it was forfeited or applied.
- If the security deposit is used to cover expenses that are chargeable to it, then the landlord should only include the part of the deposit used as income if the landlord includes the cost of repairs as expenses. If the landlord doesn’t include them as expenses as a matter of practice, then there’s no need to include the part of the deposit kept to cover them as income.
- If there is an agreement between the parties to use the deposit or part of it as the final month’s rent, then the landlord should include it as income when the same is received.
Additional Rules & Regulations in New York
Inspection Before the End of the Tenancy: Within a reasonable time after either party has notified the other of that party’s intention to terminate the tenancy (unless the tenant has terminated the lease with less than two weeks’ notice), the landlord is required to inform the tenant in writing that the latter has the option to have another inspection before vacating the premises and the right be present at such inspection.
Should the tenant opt to have this inspection, the parties must do the same no earlier than two weeks but no later than one week before the end of the tenancy, that’s anytime during the second to the last week of the tenancy. The landlord must also give the tenant at least 48 hours notice from the time of inspection. After the inspection, the landlord must give the tenant an itemized statement of all the repairs and cleanings the cost of which he intends to deduct from the security deposit. This will give the tenant the opportunity to have those repairs or cleaning done prior to vacating the unit to minimize deductions from the security deposit.
Interest Payments: New York landlords are not always required to pay interest on security deposits. The landlords are only required to do so if the security deposit is placed in a New York interest-bearing account. Whenever required, the interest accrues to the tenant but the landlords are allowed to keep 1% of the security deposit every year as administration fee. This interest may be held by the landlord and returned with the rest of the security deposit at the termination of the lease or applied to the rent or paid out to the tenant. Should the lease be terminated before the bank pays interest on the account, the landlord will only need to pay the tenant whatever interest the landlord is able to collect at that time (in addition to the remainder of the security deposit after deductions, of course).
New Property Owner’s Responsibility: The original landlord has five days after the sale of the property to do the following:
- Turn over the security deposit of the tenants in that property to the new owner; and
- Notify the tenants of the transfer and provide them with the name and address of the new owner via certified mail
The original landlord’s responsibilities over the security deposit will only be transferred to the new buyer after doing both of the above. If the original landlord does not transfer the security deposits as required, the new owner can demand that the former establish an escrow account with the amount of one month’s rent for each leased unit in the property in case the tenants demand the same upon the termination of their leases.
However, even if the original landlord has not transferred the security deposit, the new buyer is liable to the tenants for the amounts of security deposit that the new buyer has actual knowledge of plus interest thereon if any. The landlord is deemed to have “actual knowledge” of the deposits that were:
- Deposited six months immediately prior to the transfer of title;
- Acknowledged in any lease; or
- Supported by documentary evidence provided by the tenant.
Number three above, refers to instances where there are units in the property where there is no record of security deposits having been paid. In such cases, the new buyer must notify the tenants of those units of the following within 30 days from the transfer of title:
- That there is no record of payment of the security deposit for the unit;
- That the tenant has 30 days from the receipt of the notice to provide proof of payment of the security deposit; and
- That failure to do so will cause that tenant to lose any claim relating to security deposits.
Should the new buyer fail to do so, the tenant may show proof of payment at any time. The following are the accepted proof of payment:
- A canceled check drawn to the order of;
- A receipt from the old landlord; or
- A statement of the same in a lease signed by the old landlord.
For additional questions about security deposits in New York, please refer to the official state legislation, New York General Obligation Law § 7-103 to § 7-109, for more information.