Can I proceed with an eviction for non-payment of rent if the tenant has a last months deposit?
Yes. Unless the tenant notifies you that they intend to use the last months prepayment, and the lease is expiring or is month to month, then they cannot use the defense that they really don’t owe rent because they have the last months rent prepaid. In future leases it would be a good idea to put a clause in the lease that states if there is a last months deposit, then the tenant must notify you that they intend to use that prepayment prior to the date that rent is due – otherwise, you could incur costs for notices then the tenant may notify that they intend to terminate the lease and use the prepayment.
