Q: Did my landlord follow the NYS security deposit law?
My landlord has provided an itemized statement and receipts for the deductions made to my security deposit through text messaging only, the day of the deadline (14th day) to send both itemized statement and remainder of security deposit to me by mail. I did not receive the remainder of the security deposit within the 14 day legal timeframe, I received it July 15th with itemized statement w/receipts. Vacated the apartment June 30th.
Can he send the itemized statement/receipts by a text message or does it have to be by mail?
Also, if I receive one but not the other within the 14-day deadline, can I sue my landlord in small claims court for the full amount or in this case the rest of my security deposit?
Dear Poughkeepsie Tenant:
So little law is developed in courts throughout the State dealing with the tenant security deposit statute. Likely, you would sue in Small Claims Court. I cannot predict that a local Small Claims Court would not decide that the text message satisfied the statute's "provide the tenant with an itemized statement" requirement, although a check for the balance cannot accompany the text message.
"...e) Within fourteen days after the tenant has vacated the premises,
the landlord shall provide the tenant with an itemized statement
indicating the basis for the amount of the deposit retained, if any, and
shall return any remaining portion of the deposit to the tenant..." [https://www.nysenate.gov/legislation/laws/GOB/7-108]
There are two clauses in this poorly written statute similar to the Second Amendment. Is the landlord also required to return the check for the balance within fourteen days or simply provide the tenant with an itemized statement within fourteen days? That question is answered in the next sentence that mandates the check along with the itemized statement:
"...If a landlord fails to provide the tenant with the statement and deposit
within fourteen days, the landlord shall forfeit any right to retain any
portion of the deposit..."
The statute does not even employ the unambiguous phrase written itemized statement and does not require any set method for delivery, only that the entire operation be complete within fourteen days.
This important statute leaves all tenants, landlords, and judges to guess the Legislature's notion of how the landlord must go about providing the tenant with an itemized statement. No mention is made that this must be written or must be sent by mail; no mention is made of hand delivery or delivery of the itemized statement by text.
Your landlord was a step ahead of the statute providing receipts for the expenses deducted as well. The Legislature did not require a landlord to provide receipts, the idea being if a tenant did not trust the itemization, the tenant could sue and then see the receipts in court.
Substantial case law in New York gives a text message the equivalency of writing, but the statute does not require a written itemization, only itemization, and the check. Your Judge will need to decide whether the statute is strictly construed to hold the landlord in breach or decide the mail that arrived on July 15, 2023, is a de minimus violation of the statute. The check surely had to be in the mail before July 15. There is case law in other subjects where the act of mailing (as opposed to delivery or receipt) is the cutoff marker. But since the statute requires the check to be provided within 14 days, mailing that does not get to the tenant within 14 days seems a breach of the statute.
There is a statute and case law that will add five days to any statutory set period of time where mailing is a component of the statute, but as I pointed out, the Legislature did not tell us how the landlord is required to provide the tenant with the itemized statement and so mail is not a mandated form of delivery.
I hope that you pay your lawyer very well to build your case of entitlement to a forfeiture and so return to you of the entire security deposit. You could double down and seek double the deposit if you take the approach that getting the check to you after 14 days is a willful breach of the statute and so claim double the deposit. The Judge would need to determine whether the landlord willfully failed to provide the check within 14 days for the double damages.
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