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imposed as an advance payment of rent, used or to be used for any purpose . . . .” (Italics
added.) The plain language of the statute establishes that a security deposit may be imposed as
an advance payment of rent. Therefore, it becomes a factual issue, given the specific
circumstances of this case, whether the increased security deposit imposed by plaintiff
constituted an advance payment of rent.
First, in the instant case, the increased security deposit was imposed during the
pendency of the tenancy, not at the beginning of it. Therefore, a viable argument may be made
that increasing the amount of the security deposit while the tenancy is pending would make that
charge something other than simply “security.” Second, to the extent a security deposit may
eventually be used at the end of the tenancy to cover any shortfall in rental payments, that
would lend support to Foster’s contention nonpayment of an increased amount of the security
deposit is equivalent to nonpayment of a party’s rent. Third, plaintiff’s labeling of the increase
in the security deposit as “security” is not determinative. Plaintiff increased the security
deposit five years into Foster’s lease of the premises and during the pandemic, after Foster had
not paid rent for at least two years.8 Plaintiff provided no evidence that when rent was
increased in the past, it also increased the security deposit. Moreover, we cannot conclusively
say, as a matter of law, every time a landlord increases the amount of security deposit during
the tenancy, that increase would not constitute an advance payment of rent.
Therefore, under the particular circumstances of this case, Foster’s contention, that under
section 49.99.2 (A) he was protected from being evicted because his failure to make an advance
payment of rent was due to the pandemic, cannot be discounted. For that reason, whether the