A landlord may argue abandonment of the unit by a tenant before the end of the current lease term as a defense to a security deposit lawsuit.1 In Curtis v. Katz, the court held that living at a new apartment prior to the expiration of the lease did not constitute abandonment where the tenant retained the key and kept some property at the old apartment until the lease expired.2 The court defined “abandonment” as the voluntary relinquishment of the apartment with the intent of terminating possession and without vesting ownership in any other person. Where a tenant gives the landlord notice of lease termination, but leaves the premises prior to the termination and fails to pay rent for the remainder of the lease period, the tenant is not entitled to the return of the security deposit.3
What if a tenant places a deposit, but does not move in? The Lessee’s Deposit Act may or may not apply to leases that are rescinded prior to a tenant taking possession. Some courts have read the Lessee’s Deposit Act as being intended to apply when a lease terminates, but not when is has been rescinded or abandoned.4 Ultimately, this will depend on the court that you are in as the circuits are split on this issue.
For instance, in Mayeaux v. Christakis, the court held that the Lessee’s Deposit Act did not apply when both parties mutually rescinded their lease.5 There, the defendant never received keys and the landlord had verbally agreed to give back both security deposit and first month’s rent after a job fell through such that the tenant was no longer able to move into the apartment as originally planned. The court also noted here that the lease was rescinded when the landlord quickly leased the property to a new tenant. The court ultimately held that the parties mutually rescinded the lease and so the Lessee’s Deposit Act did not apply.
On the other hand, in Barnes v. Smith, the landlord testified that she had a policy of retaining half the deposit if tenants changed their minds and did not move in. The tenant disputed any discussion of this policy.6 The court treated the case as a security deposit case and ordered the return of entire deposit upon finding that the landlord failed to prove any damages when the tenants paid their deposit on Saturday, changed their minds on Monday, and the apartment was not available to anyone until Friday.
- 1Hood v. Ashby P’ship, 446 So. 2d 1347 (La. App. 1 Cir. 1984) (holding that the statute simply required a tenant to abide by the lease terms).
- 2Curtis v. Katz, 349 So. 2d 362 (La. App. 4 Cir. 1977).
- 3Borne v. Wilander, 509 So. 2d 572 (La. App. 3 Cir. 1987).
- 4Mayeaux v. Christakis, 619 So. 2d 93, 97 (La. App. 5 Cir. 1993).
- 5619 So. 2d 93.
- 606-42180 (La. App. 2 Cir. 05/16/07), 957 So. 2d 381.