[SD] Can I keep a security deposit for unpaid rent?
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Yes, in your state a landlord can withhold the deposit for rent that has not been paid (§ 43-32-24).
The deposit is meant to cover damages to the unit after the tenant vacates as well as any unpaid rent. You would want to send the tenant an itemization as to why you are withholding the deposit for the unpaid rent to their forwarding address ASAP.
I hope that helps.
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My tenant moved out and didn’t pay the last month rent. Can I keep the security deposit as the last month rent?
I understand your situation. Did the lease agreement specifically address using the security deposit as the last month's rent?
A security deposit in the amount of $1,600.00, which is equal to one month’s Rent, shall be required from the Tenant(s) at the execution of this Agreement for the faithful performance of all its terms and conditions ("Security Deposit"). The Security Deposit shall be returned to the Tenant(s) within 14 days after this Agreement has terminated. The Security Deposit shall be returned in full, and in the manner prescribed by state and local laws, upon the end or termination of the Lease Term, unless the Landlord intends on imposing a claim on the Security Deposit for any damages. The Security Deposit shall not be credited towards Rent unless the Landlord gives their written consent.
Have you documented any damages or outstanding payments owed by the tenant?
No damages are visible upon inspection.
Is there anything else the Landlord-Tenant Lawyer should know before I connect you? Rest assured they’ll be able to help with your security deposit issue.
Not really.
Hello, my name is Charlie and I am a licensed attorney. I would like to welcome you to AskaLawyer!
I am sorry you are experiencing these issues but I will be happy to assist you with your questions today.
Please allow me a moment to review your question and I will be right with you.
Which state is the rental located in?
SOUTH DAKOTA
Understood. When did the tenant vacate?
The tenant left the property on March 28, 2025... but has been very possessive of the vacant property even though they are living in Mississippi now.
Did you have a lease with the tenant?
We did an inspection for damage on the empty property - giving notice to the tenant - yesterday.
Yes, a South Dakota residential lease.
When does the lease expire or was it month to month?
The lease expires on April 30, 2025.
Were there any damages to the home?
I am holding a security deposit of $1600.
No damages were visible upon inspection.
So they just owe one month’s rent as damages for unpaid rent?
That is what I am hoping to do.
I just need to make sure that I do this correctly because they love to find the loopholes.
That is what I am trying to confirm with you, do they owe you one month’s rent yet?
They did not pay for April 2025. $1600.
Okay, let me provide some information to help.
All other previous rent has been paid.
Yes, in your state a landlord can withhold the deposit for rent that has not been paid (§ 43-32-24).
The deposit is meant to cover damages to the unit after the tenant vacates as well as any unpaid rent. You would want to send the tenant an itemization as to why you are withholding the deposit for the unpaid rent to their forwarding address ASAP.
I hope that helps.
If at any time you need an attorney to assist you, you can find a local attorney by contacting your local bar association and asking for a referral to one.
You can also contact your local legal aid society as they offer free and low cost services in these types of cases.
Another good resource is to contact your local law schools as they often have clinics with attorneys that will assist in these types of cases.
My ultimate goal during our conversation is to make sure that you clearly understand the next steps to take in this matter.
Please let me know if you need any clarification on the next steps or have any follow up questions as I will be very happy to assist you further.
Is there any specific items that need to be in the form that I send?
Just the reason you are withholding the deposit.
Can I use the eForms security deposit return letter?
“One month rent unpaid for April 2025.”
Yes.
The tenants did not provide a forwarding address. Can I send this to the rental property?
Should I also send an electronic copy via messenger or text?
It is supposed to be mailed but if you have an email address for them or text will have to do.
Do I need to also send a Pay Rent or Quit form?
No, they already moved out.
Or can this be done in lieu of that?
You just send the itemization.
OK. So legally they do not have any claim to the property after the lease has ended and I have sent this form.
I mean officially after April 30, 2025....
Right.
OK. That’s what I needed to hear.
That's good.
The client states that they have “done improvements” to the property.
Meaning filling nail holes and touch up paint.
That would not be relevant to this question.
Ok so I’ll cross that bridge when we get to it.
It is not improvements to do touch ups in hopes that you get your deposit back. They should have paid their rent if they wanted their deposit back.
I agree.
Has everything been sorted out regarding the security deposit and unpaid rent? If you have any more questions or need further assistance, feel free to ask.
I will send this letter. Thank you for the recommendations. I just didn’t want there to be something technical that I sent this at the wrong time or didn’t have a particular wording in the form.
You are welcome. I am glad to help. Nice chatting with you.
Thank you. Have a nice night.
