I think my landlord is wrongfully keeping my security deposit in California. What can I do?
Under California law, a landlord must offer the tenant an initial inspection before the tenant moves out. That will allow the tenant to clean up or fix things that need to be fixed, without taking it out of the security deposit. California law says that the landlord must give notice to the tenant in writing of his or her right to have that inspection, and the right to be present during the inspection. The notice must be provided within a reasonable time after either party has given the other notice to end the lease.
If the tenant does not request an initial inspection, the landlord’s duties end there as far as performing an initial inspection. If the tenant does want an initial inspection, both parties must try to agree on a convenient date and time for the inspection. It cannot be performed any earlier than two weeks before the termination of the lease. The tenant must be given enough time after the inspection to do any repairs or cleaning brought to his or her attention during the inspection.
Whether or not the parties both agree to the initial inspection, the landlord must give the tenant at least 48 hours’ notice about the date and time of the inspection, unless the parties agree to waive the notice. During the inspection, the landlord must disclose the repairs or cleaning issues that would justify deductions from the tenant’s security deposit. If you are a tenant, you should request an initial inspection before you move out, which can help you identify any issues that could result in your deposit being withheld.
Under California law, there are only four reasons your landlord could keep your security deposit: for unpaid rent, for cleaning the rental unit when the tenant moves out, for the repair of damages (other than normal wear and tear), and for the cost of replacing furniture or other items if the lease allows. The landlord cannot keep your security deposit for any reasons other than those, regardless of what your lease says. Your lease cannot state that a security deposit is nonrefundable.
Within 21 days after you move out, the landlord must either refund your full security deposit, or mail or deliver to you an itemized statement that lists any deductions from your security deposit, along with a refund of any amounts not deducted. If the cleaning or repairs cost less than $126 or if you waived your right to receive them, you do not have to receive copies of invoices or receipts for the work performed to the unit.
If your landlord deducted more from your security deposit than you feel is necessary, you need to immediately ask for a full refund of the amount you believe you are owed. You can make that request over the phone, but need to put it in writing as well. You should list the reasons that you think the deductions are wrong, as well as the amount you believe needs to be returned. You should keep a copy of the letter as well as proof that it was received.
If your landlord still refuses to send you what you think you are owed, you may want to take legal action. You can sue your landlord in small claims court (up to a maximum amount of $10,000), but you run the risk of the landlord filing a counterclaim against you for why he or she should be entitled to keep the deposit, and you will then have to produce evidence about why the landlord was wrong in keeping your deposit, and why you should get it back. If the security deposit was more than $10,000, you would need to file in superior court and you would need an attorney.
If you prevailed in court, and if you were able to show that the landlord acted in “bad faith” in failing to return your deposit, the court could order that the landlord pay you the amount of the wrongfully withheld deposit, plus up to twice the amount of the deposit as a penalty. You may also be able to collect attorney’s fees, depending on what the lease says.
It’s very common for landlords and tenants to have disputes over the security deposit. What a tenant may see as normal wear and tear may appear as damage to the unit to the landlord. In some cases, the case will have to go to court. A judge will decide who gets to keep the deposit based on the evidence presented.
If you are a landlord or a tenant and are having disputes over your security deposit, it may be time to speak with a real estate attorney. Call Oakland-Walnut Creek real estate attorney Robert Levy at 510-465-0025. He can help you with your dispute. Call to schedule a consultation on your case.