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posted: 2/3/2013 4:39 AM

Landlord is required to return any overpayment of rent

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Q. I rent an apartment on a month-to-month basis and have given 30-day written notice to terminate my tenancy. It will expire on the seventh day of next month. I didn't know that I would be changing jobs until the day I gave notice so I have already paid my rent in full for next month.

When I moved in several years ago I paid "first and last month's rent" and a security deposit. I have clearly overpaid the rent. I have tried to reach my landlord to discuss this and seek a refund of the three weeks' overpayment, but he won't return my calls. Am I able to recoup the extra rent or can the landlord keep it?

A. Your landlord cannot just keep the overpayment of rent. He is required to provide you with a full accounting of the original security deposit, and that would include the "last month's rent" that you paid at the time you moved in.

Most landlords no longer collect a "last month's rent" but correctly refer to all monies paid in addition to the rent due for the first month at the time of move-in as "security deposit." So you essentially just have a much larger security deposit being held by your landlord, as you in essence paid the majority of the rent that is your "last month" of tenancy for this apartment.

Within the requirements of your state law, your landlord must send you a written statement of account showing all of the security deposit (including the full amount you initially paid as "last month's rent"). Assuming you do not make any further rental payments, the landlord will deduct the seven days of rent that is due plus any other proper charges for damages or cleaning from your security deposit and remit the balance to you.

Q. I have lived in the same apartment for more than 10 years. When I moved in, I signed a one-year lease. When that expired, my tenancy rolled over to a month-to-month rental agreement under the same terms. I have not signed any new written documents and have had a cordial relationship with my landlord.

There have been no changes in the terms of my rental agreement implemented by the landlord, except for periodic adjustments in the rent, which have been reasonable. But I have a question about my landlord's attempts to implement a new late fee policy when my written lease does not say anything about late fees if my rent is paid late. (The lease does have a clause about dishonored checks being subject to a $25 fee.)

During my residence here, I have paid a few times late but have never been charged a late fee. Recently, the landlord sent me and everyone else in the building an identical 30-day written notice that effective next month the late fees and dishonored check fees would increase from $25 to $50.

The letter also reminded us that the rent is due on or before the first of the month, and rent is considered late on the second day of the month.

Does this 30-day change in terms affect me even though late fees weren't part of my original lease?

A. Yes. As you have correctly pointed out, your lease expired. Per your written lease, your continued tenancy is under that same document but as a month-to-month rental agreement. The terms of that agreement remain in effect unless changed. That means that either you or your landlord can change the terms or terminate the rental agreement at any time with proper written notice.

You have apparently understood this, as the rent has been adjusted without any dispute. The same principle applies to other terms of the tenancy, and your landlord is able to establish a late charge or adjust the amount of the fees for dishonored or returned checks. The fact that the original lease does not address late fees doesn't prevent your landlord from adopting a new policy on the payment of rent after the due date. Further, even if you were not subject to the prior $25 policy for late charges, this new notice of establishing a due date for your rent and a $50 late fee would be enforceable.

It sounds like you have not really had a problem paying the rent in a timely manner, and it is certainly reasonable for your landlord to have a late fee policy. It also makes sense from the landlord's perspective to want to have all of the tenants under the same policies.

• Property manager Robert Griswold is author of "Property Management for Dummies," and "Property Management Kit for Dummies," and co-author of "Real Estate Investing for Dummies." Email: Rental Q&A@rgriswold.inman@retodayradio.com.

2012, Inman News Service

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