The deposit (security deposit) serves 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 at 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 possibility to offset the deposit against outstanding obligations of the tenant. This is only permitted if:
There is actually a rent arrears.
The amount has not already been paid in another way.
The landlord substantiates this correctly and demonstrably.
Examples from practice
Permitted offsetting: a tenant left the property with one month of rent arrears. The landlord used the deposit to offset this amount.
Unjustified offsetting: a landlord used the deposit to automatically offset the last month's rent, even though this had not been agreed. The court ruled that the tenant was still obliged to pay the last month's rent normally.
Partial offsetting: the tenant had EUR 400 in rent arrears, while the deposit was EUR 1,000. The landlord was allowed to offset EUR 400 but had to refund the remaining EUR 600.
What is the landlord not allowed to do?
Use the deposit as an advance on future rent.
Automatically offset 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 tenancy agreement — does it contain any provisions on offsetting?
Request a specification of the withholding.
Keep proof of payment of all rent payments.
Start proceedings if the landlord unjustly withholds the deposit.
Frequently asked questions (FAQ)
1. May the landlord use the deposit for the last month's rent?
No, unless this has been agreed in writing beforehand. You must therefore pay the last month's rent as normal.
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 disagree with the offsetting?
Request a written substantiation and engage a lawyer if the landlord refuses to pay back.
Conclusion
A landlord may offset the deposit against existing rent arrears, but not arbitrarily or for future rent. Is your deposit unjustly withheld or fully offset? Then you can take legal action.
The tenancy law attorneys at Arslan Advocaten help you reclaim your deposit and challenge unjustified offsets.