Security Deposit

If it weren't landlords doing it, the culprits would be spending years in prison for felony grand theft embezzlement.

In a Nutshell

   A security deposit is money that the landlord holds to protect himself in case you break the rental agreement by not paying rent, causing damage or leave the place dirties than you got it. If all goes well, you leave the place clean and undamaged with no unpaid rent and you get the whole deposit back within 3 weeks of leaving. If that has happened, you probably wouldn't be reading this section.

   What was once a one-paragraph law has grown to pages, as landlords have tried various tactics to steal the money, and the law has then expanded to stop those tactics. In its current state, almost everything you pay up front except first month's rent is part of the "security deposit," and it cannot be non-refundable. When you leave other than by a 3-day eviction notice, you are entitled to a "initial inspection" 2 weeks before you leave [i.e., this is not the "initial inspection"  which you may have had before you moved in], where the landlord hands you a written list of his proposed deductions.  You then have the remaining time to clean and repair, or take pictures and make notes if you dispute the charge, before you leave. After you leave, the landlord does a "final inspection," and sees what is left to be done from the preliminary inspection list. Nothing more can be added unless it was hidden during the preliminary inspection. Within 21 days after you leave, the landlord must give you the balance of your deposit back minus deductions listed in detail in a written accounting, accompanied by receipts for any money charged and an accounting for hours and pay rates spent.

   Deductions for cleaning can only be made if the cleaning is necessary to return it to the condition in which you got the place. If you leave it as clean as you got it, no deduction for cleaning is allowed, and the landlord has the burden to prove the difference. Even if the landlord spent money "deep cleaning" the place [whatever that means], if you left it clean, no deduction is permitted. The expenses of cleaning must also be reasonable. Generally, a professional cleaning company can clean an empty unit for $200, including shampooing the carpet.

   Deductions for damage are only permitted if you caused them and they are beyond normal wear and tear. Commonly, landlords wanting to refurbish the place make wild accusations that you "trashed the place," and charge you exorbitant amounts for things that were already there, that you didn't cause, that broke from normal use, or never existed. Typically, the landlord would send you a bill for outrageous charges beyond the deposit in order to encourage you to hide from that debt, abandoning the legitimate refund to which you were entitled.

    You can get your deposit back by suing in small claims court. If the landlord misses the 21 day deadline, he forfeits the right to deduct anything. If he keeps the money in bad faith, you can sue for up to 3 times the amount of the deposit. The process is quick, easy, and inexpensive.  While you're at it, you can sue your landlord for other things, like breach of contract, nuisance, trespass, retaliation, fraud, unfair business practices, and more. The maximum in small claims court is now $10,000, and each person can sue separately for that amount.

The Law

    Your landlord/manager will often try to con you into thinking that you have no rights, because if they can convince you of that, they can steal thousands of dollars per year from their tenants as a reward. Just so you have the information at your fingertips, here is the statute that concerns the Security Deposit, Civil Code 1950.5 (as of 2013).  There are also cases, such as Granberry v. Islay Investments [(1995) 9 Cal. 4th 738] where the law is further clarified, but we can't have all of those cases here.

CIV ß1950.5. (a) This section applies to security for a rental agreement for residential property that is used as the dwelling of the tenant.
(b) As used in this section, ďsecurityĒ means any payment, fee, deposit, or charge, including, but not limited to, any payment, fee, deposit, or charge, except as provided in Section 1950.6, that is imposed at the beginning of the tenancy to be used to reimburse the landlord for costs associated with processing a new tenant or that is imposed as an advance payment of rent, used or to be used for any purpose, including, but not limited to, any of the following:
(1) The compensation of a landlord for a tenantís default in the payment of rent.
(2) The repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant.
(3) The cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy. The amendments to this paragraph enacted by the act adding this sentence shall apply only to tenancies for which the tenantís right to occupy begins after January 1, 2003.
(4) To remedy future defaults by the tenant in any obligation under the rental agreement to restore, replace, or return personal property or appurtenances, exclusive of ordinary wear and tear, if the security deposit is authorized to be applied thereto by the rental agreement.
(c) A landlord may not demand or receive security, however denominated, in an amount or value in excess of an amount equal to two monthsí rent, in the case of unfurnished residential property, and an amount equal to three monthsí rent, in the case of furnished residential property, in addition to any rent for the first month paid on or before initial occupancy.
This subdivision does not prohibit an advance payment of not less than six monthsí rent if the term of the lease is six months or longer.
This subdivision does not preclude a landlord and a tenant from entering into a mutual agreement for the landlord, at the request of the tenant and for a specified fee or charge, to make structural, decorative, furnishing, or other similar alterations, if the alterations are other than cleaning or repairing for which the landlord may charge the previous tenant as provided by subdivision (e).
(d) Any security shall be held by the landlord for the tenant who is party to the lease or agreement. The claim of a tenant to the security shall be prior to the claim of any creditor of the landlord.
(e) The landlord may claim of the security only those amounts as are reasonably necessary for the purposes specified in subdivision (b). The landlord may not assert a claim against the tenant or the security for damages to the premises or any defective conditions that preexisted the tenancy, for ordinary wear and tear or the effects thereof, whether the wear and tear preexisted the tenancy or occurred during the tenancy, or for the cumulative effects of ordinary wear and tear occurring during any one or more tenancies.
(f) (1) Within a reasonable time after notification of either partyís intention to terminate the tenancy, or before the end of the lease term, the landlord shall notify the tenant in writing of his or her option to request an initial inspection and of his or her right to be present at the inspection. The requirements of this subdivision do not apply when the tenancy is terminated pursuant to subdivision (2), (3), or (4) of Section 1161 of the Code of Civil Procedure. At a reasonable time, but no earlier than two weeks before the termination or the end of lease date, the landlord, or an agent of the landlord, shall, upon the request of the tenant, make an initial inspection of the premises prior to any final inspection the landlord makes after the tenant has vacated the premises. The purpose of the initial inspection shall be to allow the tenant an opportunity to remedy identified deficiencies, in a manner consistent with the rights and obligations of the parties under the rental agreement, in order to avoid deductions from the security. If a tenant chooses not to request an initial inspection, the duties of the landlord under this subdivision are discharged. If an inspection is requested, the parties shall attempt to schedule the inspection at a mutually acceptable date and time. The landlord shall give at least 48 hoursí prior written notice of the date and time of the inspection if either a mutual time is agreed upon, or if a mutually agreed time cannot be scheduled but the tenant still wishes an inspection. The tenant and landlord may agree to forgo the 48-hour prior written notice by both signing a written waiver. The landlord shall proceed with the inspection whether the tenant is present or not, unless the tenant previously withdrew his or her request for the inspection. Written notice by the landlord shall contain, in substantially the same form, the following:

ďState law permits former tenants to reclaim abandoned personal property left at the former address of the tenant, subject to certain conditions. You may or may not be able to reclaim property without incurring additional costs, depending on the cost of storing the property and the length of time before it is reclaimed. In general, these costs will be lower the sooner you contact your former landlord after being notified that property belonging to you was left behind after you moved out.Ē

(2) Based on the inspection, the landlord shall give the tenant an itemized statement specifying repairs or cleanings that are proposed to be the basis of any deductions from the security the landlord intends to make pursuant to paragraphs (1) to (4), inclusive, of subdivision (b). This statement shall also include the texts of paragraphs (1) to (4), inclusive, of subdivision (b). The statement shall be given to the tenant, if the tenant is present for the inspection, or shall be left inside the premises.
(3) The tenant shall have the opportunity during the period following the initial inspection until termination of the tenancy to remedy identified deficiencies, in a manner consistent with the rights and obligations of the parties under the rental agreement, in order to avoid deductions from the security.
(4) Nothing in this subdivision shall prevent a landlord from using the security for deductions itemized in the statement provided for in paragraph (2) that were not cured by the tenant so long as the deductions are for damages authorized by this section.
(5) Nothing in this subdivision shall prevent a landlord from using the security for any purpose specified in paragraphs (1) to (4), inclusive, of subdivision (b) that occurs between completion of the initial inspection and termination of the tenancy or was not identified during the initial inspection due to the presence of a tenantís possessions.
(g) (1) No later than 21 calendar days after the tenant has vacated the premises, but not earlier than the time that either the landlord or the tenant provides a notice to terminate the tenancy under Section 1946 or 1946.1, Section 1161 of the Code of Civil Procedure, or not earlier than 60 calendar days prior to the expiration of a fixed-term lease, the landlord shall furnish the tenant, by personal delivery or by first-class mail, postage prepaid, a copy of an itemized statement indicating the basis for, and the amount of, any security received and the disposition of the security, and shall return any remaining portion of the security to the tenant. After either the landlord or the tenant provides notice to terminate the tenancy, the landlord and tenant may mutually agree to have the landlord deposit any remaining portion of the security deposit electronically to a bank account or other financial institution designated by the tenant. After either the landlord or the tenant provides notice to terminate the tenancy, the landlord and the tenant may also agree to have the landlord provide a copy of the itemized statement along with the copies required by paragraph (2) to an email account provided by the tenant.
(2) Along with the itemized statement, the landlord shall also include copies of documents showing charges incurred and deducted by the landlord to repair or clean the premises, as follows:
(A) If the landlord or landlordís employee did the work, the itemized statement shall reasonably describe the work performed. The itemized statement shall include the time spent and the reasonable hourly rate charged.
(B) If the landlord or landlordís employee did not do the work, the landlord shall provide the tenant a copy of the bill, invoice, or receipt supplied by the person or entity performing the work. The itemized statement shall provide the tenant with the name, address, and telephone number of the person or entity, if the bill, invoice, or receipt does not include that information.
(C) If a deduction is made for materials or supplies, the landlord shall provide a copy of the bill, invoice, or receipt. If a particular material or supply item is purchased by the landlord on an ongoing basis, the landlord may document the cost of the item by providing a copy of a bill, invoice, receipt, vendor price list, or other vendor document that reasonably documents the cost of the item used in the repair or cleaning of the unit.
(3) If a repair to be done by the landlord or the landlordís employee cannot reasonably be completed within 21 calendar days after the tenant has vacated the premises, or if the documents from a person or entity providing services, materials, or supplies are not in the landlordís possession within 21 calendar days after the tenant has vacated the premises, the landlord may deduct the amount of a good faith estimate of the charges that will be incurred and provide that estimate with the itemized statement. If the reason for the estimate is because the documents from a person or entity providing services, materials, or supplies are not in the landlordís possession, the itemized statement shall include the name, address, and telephone number of the person or entity. Within 14 calendar days of completing the repair or receiving the documentation, the landlord shall complete the requirements in paragraphs (1) and (2) in the manner specified.
(4) The landlord need not comply with paragraph (2) or (3) if either of the following applies:
(A) The deductions for repairs and cleaning together do not exceed one hundred twenty-five dollars ($125).
(B) The tenant waived the rights specified in paragraphs (2) and (3). The waiver shall only be effective if it is signed by the tenant at the same time or after a notice to terminate a tenancy under Section 1946 or 1946.1 has been given, a notice under Section 1161 of the Code of Civil Procedure has been given, or no earlier than 60 calendar days prior to the expiration of a fixed-term lease. The waiver shall substantially include the text of paragraph (2).
(5) Notwithstanding paragraph (4), the landlord shall comply with paragraphs (2) and (3) when a tenant makes a request for documentation within 14 calendar days after receiving the itemized statement specified in paragraph (1). The landlord shall comply within 14 calendar days after receiving the request from the tenant.
(6) Any mailings to the tenant pursuant to this subdivision shall be sent to the address provided by the tenant. If the tenant does not provide an address, mailings pursuant to this subdivision shall be sent to the unit that has been vacated.
(h) Upon termination of the landlordís interest in the premises, whether by sale, assignment, death, appointment of receiver, or otherwise, the landlord or the landlordís agent shall, within a reasonable time, do one of the following acts, either of which shall relieve the landlord of further liability with respect to the security held:
(1) Transfer the portion of the security remaining after any lawful deductions made under subdivision (e) to the landlordís successor in interest. The landlord shall thereafter notify the tenant by personal delivery or by first-class mail, postage prepaid, of the transfer, of any claims made against the security, of the amount of the security deposited, and of the names of the successors in interest, their addresses, and their telephone numbers. If the notice to the tenant is made by personal delivery, the tenant shall acknowledge receipt of the notice and sign his or her name on the landlordís copy of the notice.
(2) Return the portion of the security remaining after any lawful deductions made under subdivision (e) to the tenant, together with an accounting as provided in subdivision (g).
(i) Prior to the voluntary transfer of a landlordís interest in the premises, the landlord shall deliver to the landlordís successor in interest a written statement indicating the following:
(1) The security remaining after any lawful deductions are made.
(2) An itemization of any lawful deductions from any security received.
(3) His or her election under paragraph (1) or (2) of subdivision (h).
This subdivision does not affect the validity of title to the real property transferred in violation of this subdivision.
(j) In the event of noncompliance with subdivision (h), the landlordís successors in interest shall be jointly and severally liable with the landlord for repayment of the security, or that portion thereof to which the tenant is entitled, when and as provided in subdivisions (e) and (g). A successor in interest of a landlord may not require the tenant to post any security to replace that amount not transferred to the tenant or successors in interest as provided in subdivision (h), unless and until the successor in interest first makes restitution of the initial security as provided in paragraph (2) of subdivision (h) or provides the tenant with an accounting as provided in subdivision (g).
This subdivision does not preclude a successor in interest from recovering from the tenant compensatory damages that are in excess of the security received from the landlord previously paid by the tenant to the landlord.
Notwithstanding this subdivision, if, upon inquiry and reasonable investigation, a landlordís successor in interest has a good faith belief that the lawfully remaining security deposit is transferred to him or her or returned to the tenant pursuant to subdivision (h), he or she is not liable for damages as provided in subdivision (l), or any security not transferred pursuant to subdivision (h).
(k) Upon receipt of any portion of the security under paragraph (1) of subdivision (h), the landlordís successors in interest shall have all of the rights and obligations of a landlord holding the security with respect to the security.
(l) The bad faith claim or retention by a landlord or the landlordís successors in interest of the security or any portion thereof in violation of this section, or the bad faith demand of replacement security in violation of subdivision (j), may subject the landlord or the landlordís successors in interest to statutory damages of up to twice the amount of the security, in addition to actual damages. The court may award damages for bad faith whenever the facts warrant that award, regardless of whether the injured party has specifically requested relief. In any action under this section, the landlord or the landlordís successors in interest shall have the burden of proof as to the reasonableness of the amounts claimed or the authority pursuant to this section to demand additional security deposits.
(m) No lease or rental agreement may contain any provision characterizing any security as ďnonrefundable.Ē
(n) Any action under this section may be maintained in small claims court if the damages claimed, whether actual or statutory or both, are within the jurisdictional amount allowed by Section 116.220 or 116.221 of the Code of Civil Procedure.
(o) Proof of the existence of and the amount of a security deposit may be established by any credible evidence, including, but not limited to, a canceled check, a receipt, a lease indicating the requirement of a deposit as well as the amount, prior consistent statements or actions of the landlord or tenant, or a statement under penalty of perjury that satisfies the credibility requirements set forth in Section 780 of the Evidence Code.
(p) The amendments to this section made during the 1985 portion of the 1985Ė86 Regular Session of the Legislature that are set forth in subdivision (e) are declaratory of existing law.
(q) The amendments to this section made during the 2003 portion of the 2003Ė04 Regular Session of the Legislature that are set forth in paragraph (1) of subdivision (f) are declaratory of existing law. [Amended by Stats. 2012, Ch. 560, Sec. 3.5. Effective January 1, 2013]

Taking Action

   Now that you understand how things are supposed to be, what can you do about it? This site offers the Security Deposit Recovery Kit, a 65-page e-book that you can download right now to get started. It has detailed discussions about the law, the various tactics used by landlords, how to fill out the small claims Plaintiff's Claim, how to present your case at trial, how to collect the money and more. Included in the Kit are the small claims forms, collection forms, handy organizing forms, and even a proof of service form. It contains $1,000 in legal advice, but costs only $50.  

 

    Ready to take action? Get the Security Deposit Kit   This is the CalTenantLaw kit,
complete with all the forms, detailed instructions, strategy, and insights.

Step by step instructions on you can recover up to $10,000 in Small Claims Court.

 Hundreds of dollars in legal advice for only $50. 

Recommended Reading
Buy the E-book "Defeat Your Landlord" by one of my clients
who followed the plan and came out ahead, only $3.95!
 
Follow their experiences, take the fear out of courts and
suing your landlord, and learn how you, too, can stick up
for your rights and win.

The author is California attorney Kenneth H. Carlson, State Bar #93602, licensed to practice law since 1980, specializing in helping tenants since then.
Contact information:  PO Box 2417, Idyllwild, CA 92549 (951)659-1234 FAX (888)764-1919 

All materials on this site copyrighted by Kenneth H. Carlson, 2003, 2004, 2005, 2012, 2013 all rights reserved. You may print pages for your own use.

Last updated 11/7/13