Tenant who backed out of deal might recoup deposit

Q On Oct. 15, I gave a prospective landlord $200 cash toward a deposit on an apartment and made plans to have her e-mail a lease agreement to me, which she did on Oct. 18.

In the meantime, my situation changed and I notified her I would not be taking the apartment and asked for my partial deposit back.

She is keeping my money, stating that because I "backed out" she will have to re-run two newspaper ads at $165 and $30; she also said she turned people away based on the pending arrangement and that the money was to "secure" the apartment for me. Do I have any recourse?

A Under Minnesota Statute 504B.175, a landlord may charge a pre-lease deposit. However, a pre-lease deposit may only be accepted if the landlord and prospective tenant enter into a written agreement that states the circumstances under which the pre-lease deposit is to be returned, and that the landlord must return the pre-lease deposit within seven days of the circumstance occurring.

I cannot tell from your question if there was a written agreement or not.

Make sure your $200 was a pre-lease deposit and not an applicant screening fee. A landlord may charge a reasonable fee to screen prospective tenants, which covers the expense of a background check on a potential tenant.

If your $200 was an applicant screening fee, you won't be able to get it back.

If the $200 was a pre-lease deposit and there was no written agreement, or the circumstances for returning the deposit in the written agreement occurred, you should be able to get your deposit back.

I would contact the landlord and tell them about the pre-lease deposit statute and request your money back.

If the landlord doesn't return your pre-lease deposit, then you should file a conciliation court claim action.

Q My fiancé and I moved into an apartment building in Monticello on Dec. 21, 2005.

We signed a six-month lease, which expired in June. We were told when we signed the lease that at the expiration we would be on a month-to-month basis unless we signed a new lease.

We now want to give a 30-day notice, and our landlord states that we have to give a 60-day notice according to our lease.

I looked over our original lease and it states: "When the lease is month-to-month, management and resident may terminate the lease only by giving the other party prior written notice equal to the notice period."

It does not state how many days the notice period is anywhere in our lease. By law, how many days written notice do we have to give?

A There is a split in the legal community regarding this issue. Many lawyers and judges believe that the only notice necessary for a month-to-month lease is one month, and that even a written agreement that requires a 60-day notice is not effective because such a clause violates Minnesota Statute 504B.145.

Other lawyers and judges believe that the parties' written agreements control, and a clause that requires a 60-day notice is enforceable by the landlord.

In your case, it sounds like the notice period is not defined in the lease.

In such a case, the only notice required is what is commonly referred to as a 30-day notice.

Notice must be one full rental period, given before the rental period begins and timed to take effect at the end of the rental period. So, to give notice for the end of November, the notice has to be presented before Nov. 1 and takes effect on Nov. 30.

You should talk to your landlord. When there is no notice period defined in the lease, you only need to give a month's notice.

Kelly Klein is a Minneapolis lawyer. Do not rely on advice in this column regarding a legal situation until you consult a qualified lawyer; information provided by readers is not confidential; participation in this column does not create an attorney/client relationship, and no such relationship is created without a retainer agreement with Klein. If you have questions concerning renting, you can e-mail her at kklein@kleinpa.com, post your questions at www.startribune.com/kellyklein or write in care of the Star Tribune, 425 Portland Av. S., Minneapolis, MN 55488.