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Can a would-be tenant break a lease and recoup the deposit?

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Q: Because of COVID-19, I signed a lease prior to seeing my apartment. I was advised it was under renovations. After I signed it, I was shown the apartment and it was uninhabitable. I did not move in, and I don’t have the keys.

The apartment manager states she will not give me my deposit back because I signed the lease. I need help. What can I do to get my deposit back? I took pictures of the apartment’s damages that clearly show why I can’t live there.

A: Online portals show us the apartments, houses, townhomes and condos of our dreams. Unfortunately, real estate reality can be quite different.

Today, homebuyers and renters believe that they can see properties online and that the place will be exactly as shown. We’re sorry you didn’t get what you signed up for. We don’t know if you were able to tell by the online photos that the condition might be compromised or if you were looking at older photos that showed the property when it was in a different (and better) state.

If you knew it was in poor condition, you should have only signed the lease if the landlord promised in writing that the apartment would be fully rehabbed prior to your move-in date.

We assume the landlord made certain representations about the condition of the apartment, but clearly, you were surprised and disappointed. Do you have a paper trail? We hope you corresponded with the landlord via text or email, so you have something that proves what the landlord promised you with respect to the condition of the property.

You should know the law can be quite technical and sometimes form goes ahead of substance. This means that the written document might bind you to the lease irrespective of what you saw, what you believed would be delivered to you, or what was said to you outside the four corners of the document you signed.

You may want to find a tenant advocate attorney or an organization that helps tenants with their landlord issues. Your local city or municipality may have a strong landlord/tenant rights division with an ombudsperson who can help adjudicate the situation. Otherwise, the only way you might get the money back is by contacting a real estate attorney to assist you in the recovery of the deposit.

But let’s talk about the word “uninhabitable.” Sometimes people use this word to mean that a home is showing wear and tear and might look dreadful. But worn or peeling paint (unless it’s lead paint) may not meet the definition of uninhabitable under the law.

When you talk with a lawyer and discuss the concept of habitability, you’ll find out the definition of “uninhabitable” is when no one in their right mind could live there. Think about a property that burned down, suffered a flood, doesn’t have running water, is covered in mold or is rat infested and would be shut down by a building inspector or government agency.

If your pictures describe a place that can’t be lived in — and not a place that you wouldn’t want to live in — you have a much better case against the landlord to get your money back. You could call the city or municipality and describe the condition of the apartment and they might even cite the owner for code and building violations.

Still, your signed lease agreement governs your relationship with the landlord. The landlord is supposed to deliver the unit described in the lease and you are supposed to pay rent on that unit during the term of the lease. If you were lied to or defrauded into entering into the lease, you might have a better chance in court to get your money back. Just know that going to court can be expensive.

Here again, see what your state law or local law has to say about the actions of your landlord. Some local ordinances are more tenant-oriented than others. If you entered into your lease in a city or suburb that has tenant-oriented laws, you might be able to use those laws in your favor and demand that the landlord return your deposit back if the landlord violated the ordinance.

Start with some research about what sort of landlord-tenant ordinances govern the place in which you live. We hope this works out for you.

(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through their website, bestmoneymoves.com.)

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