This has to be the most common problem faced by renters. If it were any other perpetrator than a landlord, it would be treated as Embezzlement Grand Theft, a felony, punishable by a year or more in prison. However, the police will declare it a “civil matter”, and District Attorney and City Attorney won’t prosecute, either, for political reasons.
Consequently, the landlord’s worst threat is as much as a hand-slapping, and then, only after the minute percentage of you have gone through a great deal of trouble just to get your money back. Usually, the landlords get away with it completely, because tenants don’t even think of challenging their landlord.
If tenants registered to vote and showed up at the polls more often, everything would change, but for now this is reality. You CAN register to vote, starting from the front page of this site, if you haven’t already. End of tirade. Let’s deal with it.
What is a Security Deposit?
– Screening Fee
– Pet/Special Deposits
– Deposit to “hold” unit
– Other Special Exceptions
What is Supposed to Happen?
– Increased Rent & Deposit
– Return Deadline
– Itemized Deductions
Games Landlords Play
– Roommates and Subtenants
– No Records
– Applying Deposit Mid-Tenancy
The law about security deposits is quite clear, given the diversity of situations it must address and the types of tricks landlords try, to keep your money. For residential tenancies [e.g. apartments], the law is Civil Code Section 1950.5 and for commercial tenancies [e.g., businesses], it is Civil Code Section 1950.7. You can refer to the respective statutes and print them out for your convenience. This is a very long web page, due to all of the complications, and you are advised to use it as a reference, reading only those portions that apply to you. Otherwise, the law may have changed by the time you finish.
In a nutshell, a security deposit is any money you pay up front other than first month’s rent, and it is your money to get back after you leave minus only reasonable amounts for cleaning, repairs of damage that you cause, and rent. Small claims court is the best way to recover it, because it is fast and cheap. For commercial tenants, it may be better to sue in regular Superior Court [Limited Jurisdiction], because of the $5,000 maximum in small claims court and the possible need for subpoenas, and other discovery available there.
Now, the details.
It’s not a simple question. If the purpose of the money is essentially to protect the landlord against your failure to take care of the property or pay your rent, it is a security deposit, under the law, no matter what name the landlord gives it. As a general rule of thumb, anything you pay up front other than the first month’s rent is a security deposit, Don’t bother arguing about it when you rent the place. Just know that’s the law, and your signing an agreement to the contrary means nothing.
The amount of the security deposit is usually one month’s rent. The maximum for residential tenants is 2 months’ rent on an unfurnished apartment or 3 months’ rent on a fully furnished apartment, with a small exception. There is no maximum for commercial tenants’ deposit, however, probably to help the landlord ensure that “tenant improvements” made by the commercial tenant [such as walls put in to cut up the rectangle into offices] will be removed and paid to be removed.
One exception to the pre-paid money is an “application screening fee” [or similar name] for processing your application and credit check, which the landlord is allowed to charge before signing you up. That is not a security deposit. It’s purpose is pay for the processing charges of the credit checking firms. It cannot be more than the landlord actually incurs, nor more than $30 per applicant. If there are two tenants, it is about $60. [Civil Code Section 1950.6]
Although a pet deposit is theoretically just for damage that your pet may cause to the rental unit, it is still your obligation to maintain the premises. Damage done by the pet is your damage, and therefore within the security deposit definition. The maximum deposit, including the pet deposit, cannot exceed the 2- or 3-month maximums described above, and it cannot be nonrefundable.
Key deposits and garage door opener deposits similarly are part of the security deposit, even if given a different name. The security deposit can be used to replace things you have lost or removed, so that keys and openers are within the legal definition of security deposits. If you return the same number of keys you got, and the same garage openers, you are supposed to get that money back.
You may find an apartment that is available, and you want to move there, but not immediately. It may be ready the first of next month, and be perfect for you needs, and you don’t want someone else to rent it. They ask you for a deposit to hold the unit, and you pay them some money which will be applied to your first month’s rent or security when you start. They will stop advertising it as a vacancy, and you need not look around any more. Is that a “security deposit?” you may ask, but there is no clear answer. It depends on what a court believes the money was for.
If its primary purpose to pay for them not renting the unit to someone else, it is an “option” to rent, and you’re paying just for the opportunity to rent that place. You got what you paid for if they don’t rent it to anyone else. If you change your mind, such as because you didn’t get transferred to that city, the money you paid to “hold” it is gone. They put it back on the market, and you’ve lost your deposit. Consequently, if that is what they want the money for, don’t throw it away on a hope.
If the primary purpose is to begin the contract [really to show that you have the money], and pay the initial amounts in advance, awaiting only for the tenancy to begin, then the money is within the security deposit definition. If you change your mind, tell the landlord, and never move in, it should all be recoverable.
Another situation arises where the landlord promised that certain things would be done before you move in, by X date, and on that day they are not done. For example, he/she may have promised new carpet and paint by November 1st, but it hasn’t even started by that date, and you’re waiting outside with your moving van. You can stop the contract then, not move in, and get all of your money back. The contract was conditional, and the landlord breached that condition. You should get the money without waiting, whether it is a security deposit or not.
Although these rarely occur, the law was written to cover two other situations.
The first is that if the tenancy is for at least a six-month lease, the landlord can require the tenant to pay advance rent of 6 months or more. That is, if the lease is for a year, the landlord can require the tenant to pay 6 months or a year’s rent up front in advance, but not 3 months because that is less than the 6 month minimum and more than the 2-month maximum. Who said law had to make sense? Or have a point?
The second exception, and it really is not an exception but a distinction, is where the tenant wants to have the landlord build in some special feature in the rental unit, such as handicap ramps or bathroom railings, and separately pay for that. The notion has nothing to do with the security deposit, but someone thought it should be included in that law, to expressly say that the limitations on deposits does not prevent such a special construction agreement from being made. It never did, anyway.
If you’re reading this, you already have that funny feeling that you’ve been ripped off, and want to know if the landlord can do what they have done. The few differences between residential and commercial tenant deposits are noted as they apply.
The Security Deposit is your money. It always has been. The landlord is allowed to hold it only for limited reasons. It can be commingled with the landlord’s personal funds. There is no right to interest on the deposit, except by local rent control laws, such as Los Angeles’ 5% annual interest requirement. If there is no lawful right to keep any of it, the landlord must give it all back to you. The landlord is the “trustee” of your money, just like a bank. When you move, you close that account.
In California, the tenant is NOT entitled to any interest on the security deposit held by the landlord UNLESS it is required by a local rent control ordinance or the rental contract, itself. For example, the deposit for a rent controlled unit in Los Angeles bears interest at 5% per year, so a $1000 deposit earns $50 interest per year; in nearby Glendale, no interest is due on the deposit, at all. The landlord does not have to keep the money separated.
The idea of the deposit is to partly to pay for rent while they are evicting you, should that happen. Therefore, if your rent is increased, the landlord frequently increases your security deposit by that same amount. It is legal to do, and you have to pay it if you decide to stay at the new high rent.
Unless it is called “last month’s rent” in the rental agreement [when you can apply it as such], the residential landlord must hand or mail it to you within 21 days after you leave, accompanied by an itemized list of deductions, if any. [If they mail it, a few more days are added] For commercial tenants, the deposit must be returned within 14 days if the only deduction is for unpaid rent, or otherwise within 30 days. Commercial tenants get no itemized list of deductions, however. The deadline is just a waiting time before you can sue. You need not wait to sue any longer than a month after you claim you were out.
The purpose of the itemization is to make it easier for residential tenants to challenge the individual deductions. Even if they don’t receive an itemized list of deductions, commercial tenants can still challenge any deductions from their deposit, but they need to make the extra effort, such as writing to the landlord asking for the explanation of the various deductions. If the commercial landlord refuses to respond, it is best to hire a lawyer and file a regular legal action, and subpoena all of the documentation that explains the deductions taken.
The landlord is not required to supply receipts or other proof of actually spending the deducted amounts, but only to list and describe them briefly. The law uses these words: “a copy of an itemized statement indicating the basis for, and
the amount of, any security received and the disposition of the security” [Civil Code Section 1950.5(f)]. For example:
|less repair of window||$75|
|less 4 days of rent [11/1-11/4]||$132.33|
In the above example, the landlord had a cleaning crew clean the carpets and drapes, and then went over the kitchen and bathroom. A broken window was repaired. You had paid rent through October, but did not actually “leave” until November 4th, so the additional days are added at 1/30 of the monthly rent per day. The above itemization would be legally sufficient, even if you have no idea what window or cleaning the landlord is talking about. In that respect, you’re not much farther ahead of the commercial tenant in knowing why your deductions were taken.
The list of deductions is a starting point. If you see that an improper item is listed there, such as the broken window or additional days’ rent, you can respond. You might call the landlord to discuss the deductions, write a letter to the landlord explaining your objection, or just file the lawsuit. If the mistake is innocent, or the deduction is questionable, the landlord is better off yielding to your challenge and sending the additional amounts to you, than risking paying the penalty if you file a lawsuit over it. What is a lawful deduction is explained in greater detail, below.
Some landlords just don’t know the law, or may have a good faith claim, even if they are later proven wrong. This section is not about them, but about those landlords who know that they are embezzling your deposit. They don’t want to just come out and admit that they’re stealing your money, so they try to make it look legitimate. They hope you don’t find out what your rights are, and come after them. For most tenants, the scam works, and these landlord keeps their ill-gotten gains. It’s a game to them. The games are given mostly childish names, because they really are childish games. Here are a few of the more common games they play and how to deal with them:
– SEMANTICS The object of this game is for the landlord to keep your deposit by calling it something else. Your rental agreement might call for a security deposit of one month’s rent, plus a key deposit of $10, a garage door opener deposit of $50, a pet deposit of $200, and a nonrefundable cleaning fee of $300. Under the law, these are all the same: your security deposit. It is fraud. There is no other reason to give it different names. Apartment owner associations put these charges into the printed form, to look legitimate which most tenants don’t question. However, the law says: “‘security’ means any payment, fee, deposit or charge, including, but not limited to, an advance payment of rent, used or to be used for any purpose”. Civil Code Section 1950.5(b) When it comes to trial, you remind the judge about that broad definition, and explain the landlords’ fraudulent intent by using funny names for the money.
– GHOSTS The object of this game is for the landlord to keep more of your deposit by claiming that you were still there after you left, so daily rent can be deducted from your deposit. Unpaid daily rent is a legitimate deduction IF you were actually there, so all they have to do is claim that you didn’t “leave” when you said. You left your ghost behind, and have to pay rent until the ghost disappears. There are two versions of this game: Keys and Things.
Keys: In the Keys version, the landlord claims that you are still there after you moved out and so advised him, solely because he didn’t get your key in his hands. You can reduce your stress and avoid that petty scheme by simply mailing a set of keys in advance of your leave by certified mail, return receipt requested. You can keep a set to help you complete your move, and time it out so that they get your keys about the day you’re actually leaving. Be sure to have your mail forwarded, so you will get the Return Receipt card back, and have proof that you turned over the keys.
Things: In the Things version, the landlord claims that you’re not officially “out of possession” until all of your things are out, too. For example, you now have a new apartment and only odds and ends are left in your old apartment. The theory is that if your odds and ends are still taking up space, the unit can’t be cleaned or re-rented, and you are still “in possession”. That’s ridiculous. Furniture does not equal “possession”. Furniture still in the apartment after a Sheriff’s lockout would not mean you were still in possession, then, so why would it be any different if you left voluntarily? If you truly abandon what is left, you should give written notice (and keep a copy) that you’re gone, and what is left is trash. If you leave a lot, the landlord can charge you daily rent to store it in the apartment as a condition of getting it back, although that is not a legal deduction from the security. You might also take a picture of what is left.
– PEEK-A-BOO: Hiding out, to avoid getting the key, is another common game. Sometimes, they’ll schedule a “walk through” and then not show up. Other times, they don’t provide a means of accepting the keys, or assign someone to pick up the keys who doesn’t show. The easiest way around it is to leave the door open, and keys on the kitchen counter, then leave a message that you’ve done that, and/or mail the key by certified mail, return receipt requested.
– SIMON SAYS: In this game, the landlord claims that you’re still in possession unless you do exactly as he/she demands, such as bringing the key to them personally, or mailing it, so it takes longer. Don’t fall for it. You are out when you’re out, and if they want to pretend that something else is required, it only shows their bad faith. You might want to write a letter (and keep a copy) confirming that you were out on X date, left the door open to demonstrate that, and left the key on the kitchen counter, when you demand the balance of your deposit back.
– FINDERS KEEPERS: In this game, the landlord just has you sign a contract which plainly says that the deposit is non-refundable. Of course, it’s illegal for him/her to put that in the rental agreement, and even if it’s there, the law ignores it as a void provision. [Civil Code 1950.5 (l)] Equally unsurprising, there is no punishment for the landlord’s fraud. Most tenants don’t know or suspect that a printed contract would be illegal, so the landlord is rewarded. It’s not worth arguing about up front when applying for the unit. Just know that the law says such a clause is void, and in court, the right to recover the money is not affected by those words.
– SHELL GAME: In this game, the landlord claims that he/she doesn’t have your deposit, usually where the old landlord got it and didn’t give it to the new landlord. “You have to get it from him,” would be the hallmark of this game. It sounds fair, at first glance, but that’s not the law. The current residential landlord owes the deposit, whether he/she got it from the old landlord, or not – even with a foreclosure or bankruptcy. The obligation “runs with the land”, and you are not required to chase down the old landlord to get it. [Civil Code 1950.5 (g) – (j)] The only exception to this is if the old landlord actually did give it back to you, or apply it as a month’s rent credit, before the new owner took over. A current commercial landlord appears to only owe you the deposit if they actually received it from the former landlord you paid. [Civil Code 1950.7 (d) – (e)] However, the obligation to repay the security should pass to the new landlord through the lease, along with all other obligations and benefits of the lease.
Now, move ahead one space.
Roommates create special problems, here. If you have a roommate, with whom you have split all the rent and security deposit, and then you leave, the landlord DOES NOT have to give you your part of the security deposit back, absent an express agreement otherwise with the landlord. You may be able to get your part of the security back when the replacement roommate pays their share, but that is up to your former roommate’s honesty. Try to get it from your roommate before you leave, and your roommate can then be reimbursed by your replacement. The landlord can keep and apply the deposit in the distant future, when the last of the roommates finally leaves.
The roommate situation frequently evolves into another problem. If you leave, and your roommate can’t pay the rent by themselves, and can’t get a replacement roommate, they may stay in possession as long as they can, to save up for a new place. Meanwhile, the rent continues to accrue unpaid, an eviction is filed, and ultimately the landlord gets possession back. Your part of the security deposit then gets applied to the unpaid rent, and you never get it back. Worse, you may be on the hook for the unpaid rent, damage to the premises, and other expenses of which you personally were innocent.
The most you can do to protect yourself is to give the landlord a 30-day Notice of Termination of Tenancy [which would be an eviction notice if it came from the landlord to you], stating not just that you’re leave, but that the tenancy itself IS TERMINATED. If the landlord thereafter accepts rent from your old roommate, a NEW rental agreement has been formed, and you are off the hook on the old agreement. It also gives you grounds to recover your deposit, 3 weeks later.
Related to the roommate situation is the sub-tenant. If you rent a place, and then move out, but leave someone else in possession, technically, you are still “in possession” through the sub-tenant. You don’t get your security deposit back until everyone is out. If you gave them a key, they are not trespassers, but your invited guests or subtenants. As with the roommate situation, you remain liable for unpaid rent, damages, and other charges incurred by your subtenant. If you want your security deposit back when you plan to sublease your apartment, get the replacement deposit from the subtenant, and let the landlord know that the money he is holding for you can then go to your subtenant. Otherwise, you may never see it.
It is a common mistaken belief that you can’t get your deposit back unless you still have the receipt. Really, who keeps those? You are entitled to get your deposit back, with or without written proof. You just need to show that you probably paid the deposit. [Civil Code 1950.5 (n)] There are several ways to show that. Here are some examples:
– A written rental agreement usually provides a space to fill in the deposit amount. That’s all you need. Some landlords collect the deposit separately, and forget or intentionally omit filling in that blank in the contract. A blank doesn’t prove that you didn’t pay it, because you can’t make the landlord properly fill out the rental agreement.
– Your cancelled check, which the bank keeps on microfilm for 10 years if you don’t have the hard copy, is another way to show your payment. They charge a nominal fee for that, but you can usually get your bank statement for the month in question for free, in order to see which check it was, and then order a copy of that check.
– The practice of the landlord probably was to get first and last from everyone, so a letter from your neighbors stating that they also paid first and last when they moved in shows that this was your landlord’s practice, and so would have been followed with you, as well.
– Your testimony that you paid it is good enough, by itself. Everyone, including the small claims judge, knows that deposits are nearly always required, and so your paying it is more like likely than not. The “burden of proof” then shifts to the landlord. If you paid the former landlord, you may be the only witness. Or the landlord could have made a better record that he/she has, so it’s their fault for your not having better proof. The landlord may have insisted on cash, and then failed or refused to give a receipt for the cash.
– Before you leave, you can write a letter to the landlord asking what you can do when you leave the apartment to maximize the amount of your deposit you get back. The landlord’s response encouraging you to do everything, and maybe mentioning “deductions” for whatever, tacitly admits the existence of the deposit from which those deductions would be taken. Before there’s a dispute, the landlord may be more candid, particularly where trying to get you to save him/her money and work. Even if they reply by phone or otherwise orally, you can write a confirming letter, thanking them for that information, and your calculations for the refund you expect, and that becomes your proof of the deposit.
Do not be fooled into thinking that you need concrete proof, or you don’t have a case. In small claims court, casual evidence is accepted without question. Rarely is the existence of the deposit ever challenged. Focus is on the deductions.
The security deposit is presumed to be used after the tenant leaves, but it might be applied earlier. For example, the landlord and tenant may agree to apply the deposit to this month’s rent, either because you were out of work or plan to move at the end of this month, or as a return of the deposit to you because the landlord is selling the building. You might apply the deposit as your last month’s rent even if the rental agreement says you can’t, because you don’t trust that your landlord would give it back irrespective of what you did.
The problems arise when the landlord wants to claim that you broke something or caused some damage, uses the security deposit to fix it, and then demands more money from you to restore your deposit. There is no law on the subject, and some rental agreements provide for that to be done. However, it may not be legal.
First of all, the statute contemplates repairs AFTER you leave, when you can immediately challenge them. Secondly, that practice would make “deposits” unlimited, not subject to a 2-month maximum, if you could be evicted for not “restoring” it. Thirdly, that practice would give landlords the upper hand with deposits, enforcing an illegal deduction under threat of eviction, instead of the bad faith penalty [up to twice the security deposit!] designed by the Legislature to discourage such abuses. Finally, it puts the tenant at a distinct disadvantage, being forced to pay unfair amounts, with only the right to recover them perhaps years later, at the end of the tenancy, when evidence is gone and memories are faded.
If your landlord attempts such a tactic, you can just give notice that you are moving, and sue to recover the deposit 21 days after you leave. If you choose to stay, you can still sue the landlord for breach of contract in small claims court, to recover the money you were forced to pay to avoid eviction. You can use the preceding paragraph to help explain to the judge why the landlord’s mid-lease use of the security is wrong.
There are four categories of deductions that the landlord is permitted to make from your deposit: rent, repairs, cleaning, and replacements. The first three apply to both residential and commercial tenancies, the replacement deduction applies only to residential tenancies, is conditional, and is rarely used. In all of these deductions, it is the landlord’s burden to prove the legitimacy of any deduction, as to the amount, the cause, the need, or the reasonableness. For example, if he says you caused damage which you deny, without more, you win that point. The landlord has to show convincing evidence, in the face of your explanation. This is one of the few areas of landlord-tenant law where you as the tenant have the upper hand.
In the example with the itemized deduction list above, the tenant had paid for all of October rent, but did not actually move out until November 4th. The landlord is authorized to deduct those 4 days’ worth of rent from the deposit. This assumes that the tenant or landlord had given proper notice, or that the tenancy had otherwise been lawfully terminated. For example, if the landlord gave you an eviction notice, and stopped collecting rent as a result, the deposit could be used to pay that unpaid rent.
A common mistake made by tenants is that they don’t give proper notice that they are moving. Proper notice is WRITTEN, identifying the unit, given to the landlord personally, by certified mail, or by posting [presumably on your own door] and mailing it to the landlord at whatever address you have, and stating the DATE when you will be out, or stating that it will be 30 days after service of the notice. It is the same standard to which the landlord is held, when trying to evict you by 30-day notice. If you don’t give that written date-and-place specific notice, your tenancy legally continues, even through you have plainly communicated that you are moving by telling the landlord directly. The result is that when you leave voluntarily, and don’t give the notice, the landlord can legally claim the ongoing rent for that month – all of November, in the above example, not just the 4 days. Luckily, most landlords don’t know this, either. If the landlord gave you an eviction notice, you don’t have to give one back to satisfy this written notice requirement, unless you’re moving sooner. The landlord’s notice is enough.
The landlord’s claim to the full month’s rent after you leave is not absolute. The landlord, as the non-breaching party, still has the legal duty to minimize his/her losses. This means, if the landlord rented the unit in a week after you left, you would only owe rent for up to the end of that week, not the full month. In our November example, 11 days at the prior rate of rent is all that could be deducted from your deposit, even if you hadn’t given the proper termination notice. However, if the landlord makes too little effort or asks higher rent, to re-rent the unit, no deduction is allowed for what lost rent could have been prevented.
The same applies if you had a lease which is not expired. You job transfers you to a different part of the State, and you move out mid-lease without a valid reason for termination. The landlord can use your deposit, and continue to hold you liable, through the end of your lease, or until your unit is re-rented under good faith efforts by the landlord, whichever occurs first.
An important exception to the residential landlord’s right to keep your deposit for time after you left is where the reason you moved is due to uninhabitable conditions, under Civil Code Section 1942. Here, for different policy reasons, the Legislature cuts off the landlord’s right to collect rents at the date when the tenant actually leaves the unit. For example, if the premises are infested with cockroaches, you simply tell the landlord that you are moving because of the infestation, and the rental agreement ends as a matter of law when you’re out. No 30-day notice is necessary, and even a lease is terminated by that means. The landlord cannot claim a default in rent deduction for any time after you leave for habitability reasons.
This is the most disputed area concerning deposit recovery, by far. There are several types of problems that arise within this area, discussed in greater detail below. Landlords love to claim that their tenants “trashed the place”, in order to justify remodeling of the unit with the tenant’s deposit. Deferred maintenance by the landlord suddenly become this tenant’s malicious destruction of property. Such a landlord thinks the propaganda movie “Pacific Heights” was about him/her, and tenants are a bunch of ungrateful transients. From that mindset, stealing your security deposit becomes an act of poetic justice. Don’t get caught up in the landlord’s martyrdom.
For residential tenants, deductions for repairs are only proper for damage caused by the tenant, beyond normal wear and tear. For commercial tenants, the wear and tear exception is missing, so that any repairs no matter how minor are deductible. In any case, the deduction must be reasonable, and the landlord has the burden to prove that.
What is “damage”? Landlords frequently try to make the former tenant pay for repainting the apartment for the new tenant, under the theory that this is to repair damage. However, unless the tenant had painted the premises some gawd-awful color, or a wall was destroyed whose repair included painting over the new wallboard, painting is not a repair of any damage. Faded paint is not damage. No deduction is normally permitted for painting, at all.
Not to belabor the point, but damage requires some change reducing the value. Landlords have claimed that tenants who repair, paint, or replace broken items in the rental unit have “damaged” it. The tenant who replaces tattered curtains with mini-blinds, or paints a chipped and rusty railing, or installs a modern chandelier in place of the cheap one installed by the landlord, has not “damaged” anything. These are positive changes, improving the value. Landlords confuse change with damage.
The “damage” also has to exist. Yes, landlords will lie in order to keep your money. They will say that the window was broken, or there was pet urine in the carpet, or that the kitchen drawer was torn off its tracks, in order to explain taking out more money, when such damages never existed. When you ask to see the damage, surprisingly the damaged item was put in the trash a week ago, and is no longer available for inspection. Lucky for you, the landlord has removed the only evidence of the damage he/she claims, and is unable to meet the burden of proof.
In this regard, landlords will show up with estimates and receipts for items claiming to have spent the money, AS PROOF that the item was damaged. The argument is, they wouldn’t have spent the money if it wasn’t damaged. However, landlords do spend money to upgrade, to repair deferred maintenance, to bring an item “up to Code”, or even to give work to a friend in the construction business. A new carpet may be due because this one is too old, or because newer ones are easier to clean between tenants. Plumbing or electrical systems may be in need of replacement or upgrading, and not be damaged at all.
Damage to the premises can happen from many things and at different times. Earthquakes make cracks in walls, cause doors to improperly close, and snap pipes. Leaky roofs, poor drainage outside, improperly sealed walls, or leaking pipes can cause mold and mildew, wall and ceiling deterioration, electrical shorts, and warped flooring. A neighbor’s son may throw a ball that cracks your window. The prior tenants may have had pets. A faucet may suffer metal fatigue and snap off. Screws or nails of a fixture may come loose. The list is long, but you get the idea. Just because it needs fixing, doesn’t mean that you caused the damage.
You may have been the one who did the thing that broke it, and still not be at fault unless you acted unreasonably. For example, a window painted so many times that it sticks requires you to use more than ordinary force to open it, and suddenly it unsticks, and quickly opens with a crack, and the window pain is now cracked. All you did was open the window. The crack is not your fault, and you are not liable for that damage. Similarly, the faucet that breaks off in your hand from metal fatigue, or the drawer that comes apart when you simply open it, are not damages caused by you in the legal sense. The legal term is “proximate cause”: where more than one reason for the damage exists, the one(s) against whom blame belongs. If you acted normally and reasonably, and damage nevertheless occurred, there is no reason why you who should be blamed for it, and lose part of your deposit. There is no reason to reward the landlord’s deferred maintenance, either.
If the problem existed before you moved in, and indeed you may have complained several times about the condition, it is not something that you caused. This is a common situation. The prior tenants didn’t mention it, because they did cause it. The landlord’s manager or maintenance people didn’t notice or mention it before you moved in. You were the first one to bring it to the landlords’ attention, so you must have caused it, and punishing you for complaining about the condition of the premises by making you pay is a good way for the landlord to silence complainers and safe maintenance costs.
If your guest broke it, that’s the same as you breaking it so far as your deposit. If you don’t know how something broke, neither does the landlord, who has to prove that you broke it.
If you hang up pictures or posters by putting nails into the wall, walk on the carpet, open windows and doors, use electrical switches and plumbing fixtures, you are damaging them to a slight degree, but these are normal activities. The judge who hears your case puts nails in his/her walls to hang pictures, and does these other things. These are normal and anticipated uses of the rental unit, which the landlord knows will result in “wear and tear”. The wear and tear exception doesn’t apply to commercial tenancies, but it is rare that the issue comes up there.
For landlords who are renting out their former residence, or particularly the house they grew up in, you have defaced their temple if you put so much as one nail in the wall. These people should not rent out their temple to infidels, but they wanted the money from the rent. They got ordinary people as tenants, not members of their sect of temple worshipers. It is a small sect.
The statute uses the expression “ordinary wear and tear” but doesn’t define it. In practice, if you used the apartment normally and something was worn or broke, that is ordinary wear and tear. These examples give you the basic rule of thumb for your particular situation:
– A window latch may wear out or have metal fatigue from being opened and closed, and that would be ordinary.
– A baseball bat smashed against a door by your kid is not ordinary wear and tear.
– Small holes from hooks or nails to hold pictures or hanging plants are ordinary, but cutting a hole in the wall or door to install a pet entrance is not.
– Mounting a large mirror on the wall using screws to hold the brackets would probably be ordinary, but gluing individual decorative mirror squares onto the wall would probably not be.
– Changing the carpet color in one room or painting a room other than a plain, pastel color would probably be considered to be “damage”, even though it technically is not.
– Burned out light bulbs are not damage.
– Dead lawns and other greenery are probably not damage, since they can die from plant diseases and many other causes. Plants dug up by your dog probably would be damage.
– Clogged drains are probably not damage.
Nail and screw holes pose no real problem. The painter spackles all the small holes and cracks before painting the apartment for the new tenant, anyway. Landlords paint apartments between tenants because tenants expect a freshly painted apartment, so spackling and painting over those patches adds little to no cost to the landlord. Even a teen’s room with a wall riddled with tack holes from pictures and posters would be painted over, and paint itself would fill the holes with no signs remaining. Landlords frequently use this painting-after-holes excuse to keep a deposit, but its groundlessness is obvious.
In between residential tenants, the landlord typically cleans the carpet and drapes, and has either the resident manager or an outside cleaning crew go through the apartment and clean bathrooms, kitchens, tiled floors, etc. It would be unusual for the cost of all that to exceed $200, and many management companies get cleaned apartments for $100 or less because the manager is already paid to do most of it. If you just move your stuff and don’t clean, however, you leave yourself open to whatever the landlord claims they paid. Claims of $300-400 are not uncommon, once landlords think they won’t be challenged. Phony receipts from anonymous cleaning personnel “justify” the landlord’s claims.
The key to this controversy is “necessary” cleaning. If you want to maximize your return, clean the unit when you leave, and take pictures. You can steam clean most empty apartments for about $50, and have a professional maid or cleaning service complete the basics for another $50, once the apartment is empty. The landlord may then send out their standard notice claiming that it cost $200 to clean you unit, but you say that nothing was “necessary” because you had already cleaned it. If you have to go to court over that issue, their bad faith charges will come back to haunt them. It is actually better to have the work done by an outside, so that you have the receipts to show, and the presumption that a professional did it correctly.
The last category of legal deductions usually doesn’t apply. It isn’t included in the commercial security deposit, and it only applies in the residential security deposit if it is described in the rental agreement, itself. Civil Code Section 1950.5(b)(4) authorizes the landlord to deduct from your deposit to “restore, replace, or return personal property or appurtenances”. Appurtenances are things attached to the land, like buildings, trees, and sprinkler systems. For example, some tenants take light fixtures, light bulbs, towel racks, or appliances like the stove, when they move out. The idea is that the security deposit could be used to pay for replacements of those items. It makes sense, but it can be abused.
The primary condition for using a security deposit to pay for replacing items is that the rental agreement has to expressly authorize that use of the security deposit. Most printed forms used by landlords omit that category. You would generally find that in the security deposit section of your rental agreement, listed among the types of deductions to expect. The important thing to know is that no such deduction for missing items is permitted unless the lease mentions that type as an approved deduction.
Landlords may replace all the light bulbs in your unit, claiming that you took them, and deduct that from your deposit. The landlord may claim that you let the plants die in the yard and charge you for replacing them. You may have removed the tattered drapes and replaced them with mini-blinds, and the landlord wants to make you pay for new drapes. In each of these situations, without the express approval of a replacement deduction, they cannot take the money from your deposit. Granted, they could still counter-sue you in small claims court for what they claim you took, but that’s another issue, and generally, they don’t think of that.
Even where a deduction is authorized by law and legitimate, the deduction must be reasonable, whether for rent, repairs, cleaning, or replacement. The landlord has the burden to prove the reasonableness of deductions, so that if you question the amount, the landlord has to show why that much had to be paid. That is, the landlord may have paid the amount they claim or that the receipt shows, but they don’t necessarily get reimbursed that amount from your deposit. Here, landlords try to get away with a lot.
Consider a single cracked window pane in a six-pane window. Reasonable would be replacing the cracked pane, for about $50 including parts and labor. Putting in a whole new window, or style of window, for a $1,000 job, would not be reasonable. Similarly, if there was a small spot on the carpet that you caused, cleaning the spot or replacing that small portion would be reasonable [assuming the carpet could be matched], but replacing the entire carpet would not be reasonable. If the landlord claims that cleaning cost $300, but you checked prices and found it all could have been done for $100, you should only be assessed the $100 charge.
Related to that is the depreciated value of the damaged item. For example, you may have ruined a 15-year old carpet by repairing your motorcycle in the living room. However, if the carpet had a 15 year life, as the carpet companies can readily tell you from a sample, the landlord can’t charge you for a brand new carpet, and probably shouldn’t be able to charge you at all. The carpet was already fully depreciated, and it was time to replace it. A variation on this problem is where a new landlord may plan to move into your place, and have plush new carpet to replace the apartment-quality carpet which had been there. The claim that you damaged the carpet and it requires replacement, would be with a comparable carpet, after deducting for the depreciation over its years of use, not the full price of the new plush carpet which the new landlord wants to install. That would not be reasonable.
Ridiculous as this sounds, it actually occurs. Tenants living in a building which is going to be destroyed to build something else often find that no deposit is returned to them upon claims of damage and cleaning required. Of course, no repair or cleaning will actually be done in those instances, but a bulldozer will mow down the building, instead. Such deductions from the deposit would not be reasonable because they were not going to be actually spent. Similarly, the landlord who evicts the tenant to remodel or upgrade should not be permitted to deduct for cleaning or repairs of items that weren’t going to remain there, anyway.
Getting back the security deposit, or the portion you should get, is a 3-step process: the demand, small claims court, and collection. It doesn’t automatically show up in your hands. You have to do it right, and avoid a couple of pitfalls.
If you have followed the above advice, you are ahead of the game, already. However, you may not have thought of looking up your rights until you were already robbed. You may now be at the stage where your landlord has either ignored you, or sent you a letter showing deductions from your deposit, with or without an accompanying check.
One of the important pitfalls to avoid is cashing the check which the landlord sends, if it is not the full amount. The landlord tries to trick you by sending the check, and when you cash it, the landlord claims that you’ve “settled” the dispute by accepting his/her offer of the small check amount. Although there are ways to cash the check without those consequences, it is best that you just photocopy the check for evidence, and return it with your demand letter. The landlord may not know to make the claim that you’ve settled the dispute, so you might be able to get the rest of your money even if you have cashed the check already. Just know that it’s a problem, and you might lose at trial for that reason.
If you’ve been ignored, you are making the demand for your deposit refund without knowing why you haven’t gotten it. If you’ve gotten an itemized list of deductions, at least you know where you have the dispute, and can focus your attention on those.
You have to make a “demand” for the money before you sue in small claims court. The demand doesn’t have to be threatening or forceful, and it is better if it is polite but firm. This is a letter you will show to the judge, and your most important evidence, because it summarizes your side of the dispute and sets the tone. You can include the legal references, which put the landlord on notice of their obligations, and mention the receipts you have. You can explain why you think that the amount is not reasonable, or that the condition was not caused by you. Since you can’t use a script at trial, this is as close as you will get to take your time to state your position for the judge to consider. You also can use this letter to show that the landlord knew of the obligation to return the money, and withheld it in bad faith. The bad faith penalty, called “statutory damages”, is up to double the deposit amount, in addition to the illegally deducted amount! [Civil Code 1950.5(L)]
Although you can’t sue until 21 days have passed [14 or 30 for commercial tenants], there is no waiting period for your demand letter. You can send it before you move, as soon as you move, after you have turned over the keys, or just before you sue. Sometimes, it saves you from suing at all, where the landlord realizes that you know your rights and backs down, or at least makes a compromise. In that respect, it can make your life simpler, and make the money come faster.
The important part of your letter is to be clear about what you are disputing and why. The judge will not read a long letter, so your position should be stated on a single page. There is no need to go into the history of the situation, or criticize the management generally. The deduction is either proper or not, and for specific reasons. For example, “You’re deducting for the broken window, but I did not break it.” or “$300 for cleaning is much higher than the quotes of $100-110 I got.” or “I called you on June 3rd to let you know I was out, but you have charged me until the 10th.” You can supplement the letter at trial with your pictures and receipts. The letter itself just shows where the conflicts lie, and why you are taking your position.
If you haven’t gotten a reasonable response from the landlord within about a week after sending your letter, you probably aren’t going to get one. An honest landlord faced with your itemized challenges of the deductions, mentioning the law, and making a firm, clear request for the money they owe you, will at least call you to work out what is left of any dispute, and be willing to give you the benefit of the doubt over damage or cleaning. You only need to sue if you can’t work things out informally.
Small claims court is close to what you see on Peoples Court and similar TV shows. Attorneys are not allowed, except if they also happened to be the landlord. There is no jury, and the technical rules of evidence used by lawyers are not used. It takes place in a courtroom, and the person who will decide the case wears a black choir robe. The important part is that this is where the landlord has to face someone who can make him/her pay you money.
It takes about a month from the time you file the small claims case until you have an actual decision. The decision isn’t a check you can cash, but only the authority to collect the money. The landlord can appeal the decision, and you then repeat the trial in front of a different judge. Collecting the money can be easy or hard, depending on what you know about the landlord and his/her assets. At the very least, you can lien their land.
You can also sue in Superior Court Limited Jurisdiction, formerly known as Municipal court, with certain advantages and disadvantages. Superior Court can easily take a year, while Small Claims takes a month. In Superior Court, either or both sides can have attorneys. You don’t necessarily get a smarter or fairer judge in Superior Court. In Superior Court, you can use subpoenas, interrogatories, depositions, and other “discovery” means to get the evidence the other side has, or find out what they’re going to say; in Small Claims court, you may get caught by surprise, but so can the landlord. The case in Superior Court is a lot more expensive, even in the simplest cases. Technical evidence rules apply in Superior Court, and you really need to hire a lawyer to help you with that. If you’re fighting over a security deposit, it’s probably not worth the extra expense. If you are suing for other things beyond the security, you need to sue for everything at once in the same case, and may need to go to Superior Court to do that.
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Step-by-step instructions on how you can recover up to $10,000 in Small Claims Court.
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