State law requires that the security deposit be returned to the tenant within 21 days of move-out plus an itemized statement for deductions totaling $125. What if the landlord improperly withholds without documentation? Or doesn’t return the deposit at all? Follow thees ten steps to get that money back!
About the Security Deposit
The security deposit is a tightly-regulated yet widely-abused aspect of rental housing. Here is the bottom line: a landlord must return the deposit (less deductions for his actual costs) within 21 days after the tenant vacates the premises.
Some deductions are allowed. The landlord is allowed to recover his expenses in a couple of circumstances. First, whatever is required to return the premises to the condition in which it was rented. That includes restoring appurtenances damaged or taken by the tenant, as well as any repair beyond ordinary wear and tear. And second, the law also allows the landlord to deduct for rent arrears.
By the same token, the purpose of the deduction is limited to restoring the property and rent arrears. It is not a free meal ticket. The landlord cannot withhold any part of the security deposit as a remedy for some other breach of the rental agreement. It can’t be punitive or arbitrary.
When a deduction is taken, it must be supported with an itemized statement (and documentation of actual expenses). The law is very clear on these aspects because withholding can be abused (and always has been abused).
Nevertheless, there are unscrupulous and unprofessional landlords that treat the deposit as their money. What should the tenant do when the landlord deducts improperly or simply won’t return the deposit at all? Here are ten suggested steps starting with some common-sense advice: avoid misunderstandings with an inspection prior to move-out and remind your landlord that the law presumes the return of the deposit (not the other way around).
Ten Steps to Get Your Deposit Back
Request a walk-through. Every tenant has the right to a final walk-though of the apartment prior to turning over the keys. The law states it plainly:
Within a reasonable time after notification of either party’s 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… 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 hours’ 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 — Civil Code 1950.5 (f)
At the walk-through get the landlord to stipulate the work that must be done to return the apartment to move-in condition. This will avoid a misunderstanding and it also presents an opportunity to remind the landlord to return the deposit in a timely fashion (21 days at most). Recruiting a witness for the walk-through is even better. Finally, a memo to the landlord should document what was discussed.
Document turnover of the keys in a memo to the landlord. Use the memo to restate the work that was done pursuant to the walk-through agreement and remind the landlord that a refund of the deposit in-full is expected. Include the address to which the deposit should be sent. This creates an evidentiary record should a dispute later arise. The objective is to get ahead of any misunderstanding and (worse-case) preclude any bad-faith behavior on the part of the landlord. Communication is the tenant’s first and best option!
If the deposit is not refunded in a timely fashion, then promptly follow up. The law is quite clear on one point: the landlord has 21 days to return the security deposit; or to support any deduction with an itemized statement and documentation. On the 22nd calendar day reach out. The sooner the landlord understands the tenant is cognizant of the law the sooner that deposit will be returned — or the next step taken by the tenant.
Scrutinize the landlord’s itemized statement if the deposit was not returned in full. All deductions must be sufficiently documented in the statement and supported by receipts. Every deduction must reflect his actual costs. Each should be fully documented. In certain instances, for example where the required work cannot be completed within the 21 day period, the cost of the work can be estimated. However that estimate must be a good-faith estimate (and the tenant is entitled to see the final receipt).
Ask the landlord to state in writing his reason for withholding any or all of the deposit. The law is clear on the reasons for deducting from the security deposit but that leaves some grey area where the landlord can allege the tenant did not live up to her obligation to leave the unit in good condition. But cleanliness is subjective. Ask specifically what aspect of unit condition fell short of condition on move-in. His response will help refute the charge later.
Request additional documentation if necessary. Without documentary evidence from the tenant — such as imagery before the tenancy and upon move-out — it can be difficult to refute the landlord’s argument that the tenant did not meet her obligation. However the receipts for the work may suggest overreach. Was the unit repainted after a relatively short tenancy? Were already-worn floor coverings replaced? The objective is to identify any work performed beyond what was necessary to restore the apartment to the condition in which it was rented. Expenses without a legitimate receipt is a red flag!
Collect past communications with the landlord (such as emails and/or texts) that might reflect on the landlord’s performance. This can be done concurrently with the steps above. If the landlord claims the premises are in some state of disrepair, can the tenant show he was sufficiently responsive to earlier maintenance requests? The tenant should not be on the hook for maintenance. Showing that the landlord did not uphold his responsibility is persuasive should the dispute get to small claims.
Request professional mediation if the landlord is uncooperative or uncommunicative. The city’s rent stabilization office can help. Call (310) 285–1031 or email BHrent@beverlyhills.org. Mediation is neither binding nor obligatory, but the proactive effort by the tenant will contrast with a landlord’s disinclination. A judge will look favorably on the tenant’s good-faith effort to resolve the dispute.
File a claim with the small claims court. This is where the documented communication with the landlord comes in handy. The tenant who can present to the judge a clear chronology; evidence of proactive and good-faith efforts; and a landlord’s recalcitrance will have a much better chance at restitution. Read our explainer, Small Claims: A Tenant’s Guide for more.
Memorialize any conversation with the landlord in writing. Immediately after it occurs. Share that memo with the landlord. Keep a record of events, days and times for later reference. The rental agreement is a contract. Think like an attorney. In legal disputes it pays to cover your ass.
Anticipate any problem getting the deposit back. Is withholding part of the landlord’s business practice? Has the landlord given a neighbor a hard time? When a neighbor moves out, follow up with them. Did the landlord handle the return of the deposit professionally?
Contact the rent stabilization office. Cases of landlord malfeasance should be brought to the attention of those who regulate rental housing. Find the RSO office at (310) 285–1031 or firstname.lastname@example.org. The office may say they can’t help you get your deposit back — it is considered a civil matter for the court unfortunately — they should know about the landlord’s business practices. File a formal complaint if necessary.
The deposit won’t absolve a tenant of all sins. The tenant who would leave her place a shambles and owe additional rent can’t simply walk away and surrender the deposit. That money is still owed; the landlord can turn to the court to recover costs in excess of the deposit.
We are always learning about new landlord practices when it comes to the security deposit. Do you have a story? Get in touch with Renters Alliance.