The deposit (security deposit) is intended as security for the landlord. A frequently asked question is whether the landlord may use the deposit to offset rent arrears. The answer is: yes, but under strict conditions.
The tenancy law attorneys of Arslan Advocaten explain how this works and what your rights as a tenant are.
What does the law say?
The law gives the landlord the ability to offset the deposit against the tenant's outstanding obligations. This is only allowed if:
There is actually a case of rent arrears.
The amount has not already been paid in another way.
The landlord substantiates this correctly and demonstrably.
Practical examples
Permitted set-off: a tenant left the property with 1 month of rent arrears. The landlord used the deposit to set off this amount.
Unjustified set-off: a landlord used the deposit to pay the last month's rent automatically offset it, even though this was not agreed. The judge ruled that the tenant was indeed obliged to pay the last month's rent as normal.
Partial set-off: the tenant had € 400 in rent arrears, while the deposit amounted to € 1.000. The landlord was allowed to set off € 400, but had to refund the remaining € 600.
What is the landlord not allowed to do?
Use the deposit as an advance on future rent.
Automatically set off the last month's rent, unless this has been expressly agreed in writing.
Withhold the entire deposit, when the rent arrears are lower than the deposit.
What can you do as a tenant?
📄 Check your rental agreement – does it say anything about set-off?
✉️ Ask for a specification of the deduction.
📑 Keep receipts of all rent payments.
⚖️ Start a procedure if the landlord wrongfully withholds the deposit.
Frequently Asked Questions (FAQ)
1. May the landlord use the deposit for the last month's rent?
No, unless this was agreed in writing in advance. You must therefore pay the last month's rent as usual.
2. What if my rent arrears are lower than the deposit?
Then the landlord must refund the remaining amount.
3. Can the landlord use the deposit for future rent?
No, that is not permitted. The deposit may only be used for existing arrears or damage.
4. What if I do not agree with the deduction?
Request a written justification and engage a lawyer if the landlord refuses to refund.
Conclusion
A landlord may set off the deposit against existing rent arrears, but not arbitrarily or for future rent. Is your deposit being wrongfully withheld or fully set off✓ Then you can take legal action.
The tenancy law attorneys at Arslan Advocaten help you recover your deposit and challenge improper set-offs.