What Every Tenant Should Know about Getting Back Your Security Deposit
I am often contacted by tenants who have questions about their security deposits. There is a very long statute in the California Civil Code at Section 1950.5 that describes in detail how landlords and property managers must handle security deposits. The Code section has requirements about how much a landlord can charge as a security deposit. It also explains what a landlord must do with a security deposit when a tenant has vacated a house or apartment. For a complete copy of Code Section 1950.5 click here.
No lease or rental agreement may call any deposit “nonrefundable.” Landlords cannot escape this rule by charging a “cleaning” or “security” or “pet” fee instead of a deposit. Under the law, the security deposit rules apply to any “payment, fee, deposit or charge” that’s intended to cover damage and unpaid rent. It doesn’t matter how it may be labeled in the lease or rental agreement.
California law requires that the deposit be used by the landlord “in only those amounts as may be reasonably necessary” only for the following four purposes:
1. For money owed towards the payment of rent (default).
2. To repair damage to the premises caused by the tenant (excluding “ordinary wear and tear”).
3. If needed, to clean the premises, after the tenant leaves.
4. When agreed to in the rental agreement, then to pay for the tenant’s failure to restore or replace personal property or furnishings.
Within 21 days after you move out—whether voluntarily, by abandonment or by eviction—the landlord has to do one of two things:
1. Return your security deposit;
2. Provide you with an “itemized statement” in writing saying why he is keeping part or all of the deposit. Any portion that is unaccounted for must be returned to the tenant.
If your tenancy began on or after January 1, 2003 then you have the right to request pre-move out inspection of your rental unit. This can help to learn whether the landlord intends to make any deductions from your deposit for damage or uncleanliness. During the inspection the landlord or his agent, must point out any reasons why they might deduct money from the deposit. You’ll then have an opportunity to remedy the problems before the final inspection.
Here’s how to request the inspection: Within a reasonable time after you or the landlord notify the other party of the end of your tenancy, the landlord must inform you in writing that you have a right to be present at the inspection, which must take place (if you request it) no sooner than two weeks before the end of the tenancy. The landlord must give you 48 hours’ notice before the inspection if you haven’t already agreed on a time beforehand. You can fore waive the right to demand 48 hours written notice of the inspection, but I don’t advise it.
After conducting the inspection, the landlord must give you an itemized statement of intended deductions, plus a statement with the language contained in Civil Code §§ 1950.5(b)(1) through 1950.5(b)(4) and 1950.5(d). If you’re not present at the inspection, he should leave the list in the unit. You can remedy the problems at your own cost and potentially save yourself a lot of expense. Make sure if the repairs that are listed are significant that you get your landlord’s written authorization to do the work. Get specific instruction about how to fix any noted problems.
After you leave, the landlord will reinspect the apartment and if he still wants to do further cleaning or make other necessary improvements, then he must send you another itemized statement listing the deductions within three weeks after you’ve vacated. This statement must also include copies of any receipts for work he claims to have paid others to do.
If your efforts to fix or clean don’t measure up, the landlord can still argue that you didn’t clean well enough. That’s why it’s a good idea to keep receipts for all the materials that you use to clean, and to follow up by taking good, detailed photos of the condition of the apartment or house when you leave. Make sure to address all of the problems pointed out by your landlord.
If a landlord fails to return your security deposit within the three weeks or doesn’t otherwise follow the legal steps for itemization and return, then the request for the initial inspection and the follow up itemization of noted problems together with your photos of premises should provide you with a strong basis to bring a claim demanding the return of your security deposit. Usually you will want to do this in small claims court. If the amount of the security deposit is very large, or in the case of commercial tenants that are organized as corporations, the case will need to be handled by an attorney. If you can show the court that the landlord kept the deposit in bad faith, then you could get damages of up to twice the amount of the deposit.
- As with all communication between with your landlord, a tenant’s request for the initial inspection of the dwelling should be made in writing. Date the letter, sign it, and keep a copy for your own records. If you have a bad relationship with your landlord, or just a bad landlord, it is a good idea to send the request certified mail.
- If you make a request for the inspection and the landlord refuses to give it, and still attempts to keep the security deposit, then you have an even better argument that he or she is acting in bad faith.
- If more than three weeks have passed since you moved out and the landlord has not either returned the deposit or sent you an itemized statement explaining what happened the security deposit, then you should send a letter demanding that it be returned.
- If the security deposit is not returned, follow the link below to learn more about making your case in small claims court.