The Security Behind Your Deposit: How to Get It Back

Lanlord/Tenant Law is not one of my general areas of practice, but like every lawyer, I have friends who often ask my advice about legal issues with which they are faced. Recently, a friend asked for my help in corresponding with her former landlord regarding charges taken out of her rental security deposit she felt were unwarranted.

As landlord/tenant issues are among the most common legal questions I receive from friends, I’d like to discuss rights and responsibilities regarding security deposits in this post. At the end I shall include a sample letter you can send to your landlord for return of your deposit.

Please note all information in this post is specific to California law. The laws of your state or jurisdiction may differ. Many states offer renter’s handbooks that would include important laws, or you should contact an attorney licensed in your jurisdiction for assistance.

– L.J.

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The most common dispute between landlords and tenants is the return of the security deposit. A security deposit is money paid in advance of a tenancy by the tenant to protect the landlord against any damage that may occur to the property while the tenant inhabits it. Section 1950.5 of the California civil code addresses security deposits and a tenant’s rights regarding return of the deposit.

Security Deposits

The maximum security deposit a landlord may charge is equal to two months’ rent if the unit is unfurnished, or three months’ rent for a furnished unit. The security deposit is just that – a deposit for the security of the unit. It is not a fee or last month’s rent.

When you move out of the unit, you are entitled to a walk through inspection of the unit with the landlord. Always request one. At the walk through you will have the opportunity to dispute any claims of damage or depreciation asserted by your landlord if you disagree with such claims. You also will then have the opportunity to correct any problems.

If there is indeed damage to the unit, the landlord will deduct the cost for cleaning and repairs from your security deposit and will return the unused portion of the deposit to you. A landlord may not charge you for standard cleaning or repairs caused by ordinary wear and tear. For example, over time carpets wear down from ordinary foot traffic – if they didn’t we would never have to replace them. Carpets typically have a life expectancy of 5-10 years, with 7 years being the most common expectancy. Your landlord may not deduct the cost of the ordinary wear and tear from your security deposit. However, if you invited 300 of your closest friends over to walk around in their muddy shoes and your formerly white pristine carpet is now black, your landlord can charge you for the cleaning or for depreciation to the carpet.

Your landlord should include an itemized list of any repairs and the cost of such repairs when returning your deposit. Any repairs made by a third party (cleaning company, painter, contractor, etc.) should include a copy of the invoice. The landlord must include a description, total cost, hourly charge and time it took for any repairs made by the landlord or his/her staff. All charges must be reasonable.

Depreciation

A landlord may also deduct any charges for depreciation from a tenant’s security deposit. Depreciation is the decrease in value due to use. Most items depreciate over a certain life expectancy, but heavy use may decrease its useful life. Examples of items in a rental unit that may depreciate include the carpets, tile or other flooring, cabinets, appliances, doors, etc. Let’s consider the example of a dishwasher.

Terry Tenant used the dishwasher at her rental unit in many ways in which it was not intended, including giving her car engine a thorough cleaning through the “pots and pans” cycle. The oil, grease and grime residue, as well as the heavy engine caused irreversible damage to the dishwasher. Terry Tenant is moving out and Larry Landlord discovers he will need to buy a new dishwasher in order to rent the unit. He wants to charge Terry for having to replace the dishwasher, but it is not fair to charge Terry the entire cost, as future tenants will benefit from the new dishwasher, and previous tenants used the old dishwasher. Thus, depreciation is calculated using the life expectancy, useful life and cost, and Terry is only responsible for this cost.

The IRS depreciation schedule for dishwashers is 5 years. Let’s say Terry lived in the unit for 1 year, and the dishwasher was already two years old when Terry moved in. So, the dishwasher needs to be replaced at 3 years old, but it should have lasted 5 years. Thus, the dishwasher should have lasted for 2 more years (5-3), but due to Terry’s use now needs to be replaced. Terry will be responsible only for the lost life of the dishwasher, or 2/5 of the cost. If the dishwasher cost $1,000.00, Terry is responsible for $400.00 (2/5 x $1,000.00).

What Should You Do?

If you believe your landlord has over charged you for certain repairs or has withheld part (or all) of your security deposit without justification, you should Dominoqq Deposit dana first write a letter to your landlord explaining which charges you find unreasonable and why. You may wish to discuss the matter over the phone with your landlord, but be sure to also send a letter via certified mail, return receipt requested. Keep the letter on point and respectful. See the sample letter below.

If your landlord does not respond or refuses to return your deposit, you may want to file a lawsuit in California small claims court for the return of your deposit, court costs and possibly a penalty. If you believe your landlord is acting in bad faith in refusing to return your deposit, California law entitles you to recover twice the amount of the security deposit. As with any legal matter, you should contact a knowledgeable attorney if you have questions or concerns.

However, before you file a lawsuit in small claims court, you should stop and analyze the landlord’s claims of damage. Did you leave the unit in the same condition as when you moved in? Are you sure the unit did not require any additional cleaning, painting, carpentry, etc.? Occasionally tenants are unrealistic about the condition of the unit and end up losing money going to court.

 

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