Q: My lease requires that the tenant pay make three $500 payments over the first three months of the lease to make up the security deposit of $1,500.  The tenant paid the first payment, but failed to pay the second installment of $500.  Can I ask for this in a non-payment of rent notice and file an eviction if they don’t pay asking for the deposit?

A: No.  This tact would be incorrect for two reasons.  First, failure to pay a security deposit is not a nonpayment of rent; it is a noncompliance with one of the terms of the lease.  Therefore, a landlord would be required to serve a Ten Day Notice of Non-Compliance pursuant to A.R.S. § 33-1368A.  The tenant would then have ten days to pay the security deposit or be evicted.  Second, in an eviction related to the tenant’s failure to pay the security deposit, a landlord is entitled to gain possession of the Premises but they are not entitled to a judgment for the amount of the security deposit.  This is because the security deposit is simply tenant funds that the landlord is holding in case the tenant defaults on its obligations.  If a landlord were to get a judgment for the amount of the security deposit, then that would mean the money is actually owed to the landlord, and is no longer the tenants’ funds.  While it sounds illogical, a court will not award a landlord the deposit before the landlord has actually incurred the damages.  In such a suit, the landlord would be entitled to attorneys’ fees and court costs.  Also, during the ten day noncompliance period, the landlord can not accept the rent.  If the landlord accepts the rent, such action constitutes a waiver of the breach, and the landlord can not pursue the eviction.  Therefore, if an eviction is eventually filed for the noncompliance, the landlord will be entitled to the rent due and owing.

Information contained in this post is for informational purposes only and should not be considered legal advice. You should always contact an attorney for legal advice and not rely on information published here.