What happens if LL forgets to bill security increase?

Provided by:  Jennifer Kirschenbaum, Esq.

December 7, 2021

Question:

Hi Jennifer, 

I just realized my security deposit in my lease is supposed to go up every year. I am in my 6th year and the Landlord never asked and hasn't taken it on file.  Am I in breach of my lease?  Should I send a check? 

Thanks, Dr. P 


Answer:

Hi Dr. P, 

With a real property lease, most of the time the answer is in the language of the lease.  On security increases, most of the time the increase is automatic and you have to send.  Sometimes, and this is my preferred language, the Landlord has to invoice you at the times of increase for the increase to be valid.  Assuming your lease language is the former (and more common), you may be in breach and you may wish to send a check.   Or, you may wish to let it ride and see if an issue ever arises.  Since the lesser security can easily be corrected if Landlord ever brings it up, the likelihood (without seeing your lease language) is that you can correct the defect and avoid any claim of a breach of the lease.  

To give you the right answer we would have to look at the lease.  As with most arrangements, it is always easier to have clear and clarified, agreed to language, BEFORE signing, not after.   A real property lease is right at the top of the list of items you should have reviewed and negotiated prior to signing.