Legal Question in Wills and Trusts in North Carolina

can a landlord hord a deseased persons deposit and not give the executor a copy of the lease contract to be used to settel the estate

Asked on 8/19/11, 2:35 pm

3 Answers from Attorneys

The executor first needs to be appointed by the court and letters testamentary issued by the clerk. If the executor has done this it is the responsibility of the executor to collect all assets belonging to the deceased, including any security deposit. It is also the executor's duty to notify any creditors to file any claims.

There is no privilege to break one's lease in NC in general. I know the person died, but depending on what kind of lease the decedent had he/she may still owe unpaid rent. If that is the case, all or a part of the security deposit may be retained by the landlord.

Below are the landlord tenant statutes. What I would do is write a letter to the landlord and advise that the tenant is deceased and the person has been appointed. Provide a copy of the order granting letters. I would provide an address where the landlord can contact the executor. I would cite the statute and demand a return of the security deposit. I would also ask the landlord to submit a statement for unpaid rent/damages or file a claim for the same with the executor/court as per NC law. I would also demand a copy of the lease. If the landlord fails to respond, then the executor will have to sue the landlord.

42‑51. Permitted uses of the deposit.

Security deposits for residential dwelling units shall be permitted only for the tenant's possible nonpayment of rent and costs for water or sewer services provided pursuant to G.S. 62‑110(g), damage to the premises, nonfulfillment of rental period, any unpaid bills that become a lien against the demised property due to the tenant's occupancy, costs of re‑renting the premises after breach by the tenant, costs of removal and storage of tenant's property after a summary ejectment proceeding or court costs in connection with terminating a tenancy. The security deposit shall not exceed an amount equal to two weeks' rent if a tenancy is week to week, one and one‑half months' rent if a tenancy is month to month, and two months' rent for terms greater than month to month. These deposits must be fully accounted for by the landlord as set forth in G.S. 42‑52.

42‑52. Landlord's obligations.

Upon termination of the tenancy, money held by the landlord as security may be applied as permitted in G.S. 42‑51 or, if not so applied, shall be refunded to the tenant. In either case the landlord in writing shall itemize any damage and mail or deliver same to the tenant, together with the balance of the security deposit, no later than 30 days after termination of the tenancy and delivery of possession of the premises to the landlord. If the extent of the landlord's claim against the security deposit cannot be determined within 30 days, the landlord shall provide the tenant with an interim accounting no later than 30 days after termination of the tenancy and delivery of possession of the premises to the landlord and shall provide a final accounting within 60 days after termination of the tenancy and delivery of possession of the premises to the landlord. If the tenant's address is unknown the landlord shall apply the deposit as permitted in G.S. 42‑51 after a period of 30 days and the landlord shall hold the balance of the deposit for collection by the tenant for at least six months. The landlord may not withhold as damages part of the security deposit for conditions that are due to normal wear and tear nor may the landlord retain an amount from the security deposit which exceeds his actual damages.

42‑55. Remedies.

If the landlord or the landlord's successor in interest fails to account for and refund the balance of the tenant's security deposit as required by this Article, the tenant may institute a civil action to require the accounting of and the recovery of the balance of the deposit. The willful failure of a landlord to comply with the deposit, bond, or notice requirements of this Article shall void the landlord's right to retain any portion of the tenant's security deposit as otherwise permitted under G.S. 42‑51. In addition to other remedies at law and equity, the tenant may recover damages resulting from noncompliance by the landlord; and upon a finding by the court that the party against whom judgment is rendered was in willful noncompliance with this Article, such willful noncompliance is against the public policy of this State and the court may award attorney's fees to be taxed as part of the costs of court.

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Answered on 8/19/11, 4:18 pm

Cheryl David Law Offices of Cheryl David

The executor will be able to use the resources of the court and state law to procure this information if it makes economic sense to go this direction.

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Answered on 8/19/11, 7:55 pm

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