Q: I am a landlord, and my lease does not contain an early-termination clause. Our policy on early termination was explained verbally to my tenant, multiple times, but never presented in writing to him until I secured a new tenant to rent his apartment.

The tenant had five months remaining on his lease, and I prorated my typical rental lease fee as his early-termination fee. He has now moved out of the apartment, but he is not willing to pay the early-termination fee. I have his security deposit, and I am wondering if I can deduct the early-termination fee from his security deposit.

A: The basic idea behind an early-termination fee is to cover a landlord's expenses related to re-renting the property. Normally, landlords include a clause covering early termination in the lease, or provide the landlord's policies in a written response to a tenant's question about leaving early.

In order to avoid arguments about what people agreed to and what was never proposed, courts adopted rules that require most agreements relating to real estate to be supported by a written document. A document that both people signed is obviously the best form of written evidence, but an agreement between two parties that is confirmed or documented in writing and never disclaimed by the other party until after the time of the intended completion is considered pretty solid evidence by most courts.

In this case, I can't tell when the written notice was provided, or if the tenant moved out before it was sent. Some landlords try to collect these type of fees even if there was no written agreement or documentation. If you believe that the tenant understood that there would be a fee and that the amount was intended to be paid by the tenant, then you have a good-faith belief to withhold that amount from the security deposit.

Make sure you send the tenant a letter within 21 days, as stated under Minnesota law, outlining any amounts withheld from the security deposit and the reasons for withholding it. Minnesota law states that the landlord may use the tenant's security deposit to remedy tenant defaults in the payment of rent or other funds owed to the landlord, such as your early-termination fee, as stated in an agreement.

If the tenant sues, the tenant can argue that you withheld that amount in bad faith, but if you have a copy of the early-termination document you gave him and a copy of your security deposit letter, you have a good chance of not having to pay any penalties relating to bad faith.

Kelly Klein is a Minneapolis attorney. Participation in this column does not create an attorney/client relationship with Klein. Do not rely on advice in this column for legal opinions. Consult an attorney regarding your particular issues. E-mail renting questions to kklein@kleinpa.com, or write to Kelly Klein c/o Star Tribune, 425 Portland Av. S., Minneapolis, MN 55488. Information provided by readers is not confidential.