One of the most problematic areas of landlord-tenant relationships revolve around the return of security deposits, the money deposited with the landlord in residential leases which is returned to the tenant after the landlord determines if any deductions can be made.
The reason for the often heated exchanges is simple: the return of the security deposit occurs at the end of the relationship when the landlord and tenant are unlikely to see each other again-except, perhaps, in court. Whatever economic motivations caused them to cooperate before are over and the tenant, facing the costs of the move, and the landlord, facing the cost of re-renting the unit, are both seeking to maximize the sums available to them from the deposit.
The California law is clear on the rights and remedies available for the parties and both landlords and tenants should know the law to determine their appropriate actions. This article shall outline the basic law and give some practical advice.
THE BASIC LAW OF SECURITY DEPOSITS IN CALIFORNIA:
California law specifically allows the landlord to use a tenant's security deposit for four purposes:
1. For unpaid rent;
2. For cleaning the rental unit when the tenant moves out, but only to make the unit as clean as it was when the tenant first moved in;
3. For repair of damages, other than normal wear and tear, caused by the tenant or the tenant’s guests; and
4. If the lease or rental agreement allows it, for the cost of restoring or replacing furniture, furnishings, or other items of personal property (including keys), other than because of normal wear and tear. California Civil Code Section 1950.5 (b) (e).
A landlord can withhold from the security deposit only those amounts that are reasonably necessary for these purposes. The security deposit cannot be used for repairing defects that existed in the unit before the tenant moves in, for conditions caused by normal wear and tear during tenancy or previous tenancies, or for cleaning a rental unit that is as clean as it was when the existing tenant moved in.
What is “normal wear and tear?” There are many cases on the topic, but essentially it comes down to the normal decay of carpets, walls, fixtures, etc that time can create when the property is used for the purpose it was leased for. For instance, walls have to be repainted every few years and the landlord cannot expect the tenant to pay for that. However, if a tenant installed a special entertainment system that damaged the wall when removed, the landlord can probably deduct the cost of repair and painting from the security deposit. (CC 1950.b (b) (e).
Note that a rental agreement or lease can never state that a security deposit is “nonrefundable." CC 1950.5 (m). Such a clause is void under the law.
Under California law, within 21 calendar days after the move, the landlord must either:
1. Send a full refund of the security deposit, or
2. Mail or personally deliver to the tenant an itemized statement that lists the amounts of any deductions from the security deposit and the reasons for the deductions, together with a refund of any amounts not deducted. (CC 1950.5 (g) (2) (effective January 1, 2004)
The landlord also must send copies of receipts for the charges that the landlord incurred to repair or clean the rental unit and that the landlord deducted from the security deposit. The landlord must include the receipts with the itemized statement.
The landlord must also follow these rules:
1. The landlord or the landlord’s employees did the work – The itemized statement must describe the work performed, including the time spent and the hourly rate charged. The hourly rate must be reasonable.
2. If another person or business did the work – The landlord must provide copies of the person’s or business’ invoice or receipt. The landlord must provide the person’s or business’ name, address and telephone number on the invoice or receipt, or in the itemized statement.
3. If the landlord deducted for materials or supplies – The landlord must provide you a copy of the invoice or receipt. If the item used to repair or clean the unit is something that the landlord purchases regularly or in bulk, the landlord must reasonably document the item’s cost (for example, by an invoice, a receipt or a vendor’s price list). (CC Section 1950.5 (g) (2) effective January 1, 2004.)
4. If the landlord made a good faith estimate of charges – The landlord is allowed to make a good faith estimate of charges and include the estimate in the itemized statement in two situations:
(1) the repair is being done by the landlord or an employee and cannot reasonably be completed within the 21 days, or
(2) services or materials are being supplied by another person or business and the landlord does not have the invoice or receipt within the 21 days.
In either situation, the landlord may deduct the estimated amount from the security deposit. In situation (2), the landlord must include the name, address and telephone number of the person or business that is supplying the services or materials.
Within 14 calendar days after completing the repairs or receiving the invoice or receipt, the landlord must mail or deliver to the tenant a correct itemized statement, the invoices and receipts described above, and any refund to which the tenant is entitled. CC 1950.5(g) (1).
The landlord must send the itemized statement, copies of invoices or receipts, and any good faith estimate to the tenant at the address that the tenant provides. If the tenant does not provide an address, the landlord must send these documents to the address of the rental unit that the tenant just vacated.
Note that the landlord is not required to send copies of invoices or receipts, or a good faith estimate, if the repairs or cleaning cost less than $126 or if the tenant has waived the right to receive them. CC 1950.5 (g) (4). (Effective January 1, 2004)
If the landlord fails to either mail a full refund or the required statement of deductions within 21 days as required by law the landlord loses the right to keep any of the security deposit and must return the entire deposit to the tenant. Granberry v Islay Investments (1995) 9 Cal 4th, 738.
“REASONABLE WEAR AND TEAR”: THE USUAL FIGHT
The most common cause of disputes over security deposits pertains to the landlord insisting that damage was caused that should allow deductions from the security deposit and tenants insisting the damage was merely to be expected over time or that the condition already existed when the tenant arrives. Are there any guidelines that can help?
Recall that California's security deposit statute specifically allows the landlord to use a tenant's security deposit for the four purposes stated above. The statute limits the landlord's deduction from the security deposit to an amount that is "reasonably necessary" for the listed purposes. Unfortunately, the statute's terms "reasonably necessary" and "normal wear and tear" are vague and mean different things to different people.
The following suggestions are offered as practical guides suggested by the CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS for dealing with security deposit issues. While these suggestions are consistent with the law, they are not necessarily the law in this area.
1. Costs of cleaning - A landlord may properly deduct from the departing tenant's security deposit to make the rental unit as clean as it was when the tenant moved in. CC 1950.5 (b) (3) for units in which the tenancy began after January 1, 2003.
A landlord cannot routinely charge each tenant for cleaning carpets, drapes, walls, or windows in order to prepare the rental unit for the next tenancy. Instead, the landlord must look at how well the departing tenant cleaned the rental unit, and may charge cleaning costs only if the departing tenant left the rental unit (or a portion of it) less clean than when he or she moved in.
Reasonable cleaning costs would include the cost of such things as eliminating flea infestations left by the tenant's animals, cleaning the oven, removing decals from walls, removing mildew in bathrooms, defrosting the refrigerator, or washing the kitchen floor. But the landlord could not charge for cleaning any of these conditions if they existed at the time that the departing tenant moved in. In addition, the landlord could not charge for the cumulative effects of wear and tear.
Suppose, for example, that the tenant had washed the kitchen floor but that it remained dingy because of wax built up over the years. The landlord could not charge the tenant for stripping the built-up wax from the kitchen floor.
2. Carpets and drapes - "useful life" rule - Normal wear and tear to carpets, drapes and other furnishings cannot be charged against a tenant's security deposit. Normal wear and tear includes simple wearing down of carpet and drapes because of normal use or aging, and includes moderate dirt or spotting. In contrast, large rips or indelible stains justify a deduction from the tenant's security deposit for repairing the carpet or drapes, or replacing them if that is reasonably necessary.
One common method of calculating the deduction for replacement prorates the total cost of replacement so that the tenant pays only for the remaining useful life of the item that the tenant has damaged or destroyed. For example, suppose a tenant has damaged beyond repair an eight-year-old carpet that had a life expectancy of ten years, and that a replacement carpet of similar quality would cost $1,000. The landlord could properly charge only $200 for the two years' worth of life (use) that would have remained if the tenant had not damaged the carpet.
3. Repainting walls - One approach for determining the amount that the landlord can deduct from the tenant's security deposit for repainting, when repainting is necessary, is based on the length of the tenant's stay in the rental unit. This approach assumes that interior paint has a two-year life. (Some landlords assume that interior paint has a life of three years or more.)
Length of stay Deduction
Less than 6 months full cost
6 months to 1 year two-thirds of cost
1 year to 2 years one-third of cost
2 or more years no deduction
Using this approach, if the tenant lived in the rental unit for two years or more, the tenant could not be charged for any repainting costs, no matter how dirty the walls were.
4. Other damage to walls - Generally, minor marks or nicks in walls are the landlord's responsibility as normal wear and tear (for example, worn paint caused by a sofa against the wall). Therefore, the tenant should not be charged for such marks or nicks.
However, a large number of holes in the walls or ceiling that require filling with plaster, or that otherwise require patching and repainting, could justify withholding the cost of repainting from the tenant's security deposit. In this situation, deducting for painting would be more likely to be proper if the rental unit had been painted recently, and less likely to be proper if the rental unit needed repainting anyway.
Generally, large marks or paint gouges are the tenant's responsibility.
Practically speaking, a tenant has two options if the landlord does not honor the 21-day rule. The first step for both is to call and write the landlord to request a refund of the entire security deposit as described pursuant to the law above. At that point either a settlement is reached or litigation, mediation or arbitration will ensue, depending on the lease between the parties.
Another option is to sue the landlord in Small Claims Court for return of the security deposit. It should be noted that in that forum the landlord then could file a counterclaim against the tenant as well. In the counterclaim, the landlord can assert a right to make deductions from the deposit, for example, for unpaid rent or for damage to the rental that the landlord alleges that the tenant caused. Both parties then will have to argue to the judge why he or she is entitled to the deposit.
Initial Inspection Before Tenant Moves Out
A tenant may ask the landlord to inspect the rental unit before the tenancy ends to identify defects or conditions that justify deductions from the tenant's security deposit. The purpose of this "initial inspection" is to give the tenant an opportunity to repair the defects or do the cleaning identified during the inspection in order to avoid deductions from the tenant's security deposit. The tenant has the right to be present during the inspection.
The landlord must perform an initial inspection if the tenant requests it, but cannot make an initial inspection unless the tenant requests it. However, the landlord is not required to perform an initial inspection if the landlord has served the tenant with a three-day notice (an eviction notice) because the tenant has failed to pay the rent, violated a provision of the lease or rental agreement, materially damaged the property, committed a nuisance, or used the property for an unlawful purpose. CC Section 1950.0 (f) (1) (effective January 1, 2004).
The landlord must give the tenant written notice of the tenant's right to request an initial inspection of the rental and to be present during the inspection. The landlord must give this notice to the tenant a "reasonable time" after either the landlord or the tenant has given the other written notice of intent to terminate (end) the tenancy. If the tenant has a lease, the landlord must give the tenant this notice a "reasonable time" before the lease ends. If the tenant does not request an initial inspection, the landlord does not have any other duties with respect to the initial inspection.
Scheduling the inspection
When the tenant requests an initial inspection, the landlord and the tenant must try to agree on a mutually convenient date and time for the inspection. The inspection cannot be scheduled earlier than two weeks before the end of the tenancy or lease term. In any event, the inspection should be scheduled to allow the tenant ample time to perform repairs or do cleaning identified during the initial inspection. The landlord must give the tenant at least 48 hours' advance written notice of the date and time of the inspection whether or not the parties have agreed to a date and time for the inspection.
Based on the inspection, the landlord or agent must prepare an itemized statement of repairs or cleaning that the landlord or agent believes the tenant should perform in order to avoid deductions from the tenant's security deposit. The landlord or agent must give the statement to the tenant if the tenant is present for the inspection, or leave it inside the unit if the tenant is not present. The landlord or agent also must give the tenant a copy of California's security deposit statute, which lists lawful uses of tenants' security deposits.
This statute has the effect of limiting the kinds of repairs or cleaning that the landlord or agent may properly include in the itemized statement. Because of this statute, the landlord cannot, for example, use the tenant's security deposit to repair damages or correct defects in the rental that existed when the tenant moved in or that are the result of ordinary wear and tear.
Since the landlord cannot use the tenant's deposit to correct these kinds of defects, the landlord or agent cannot list them in the itemized statement.
Tenant’s Right to Repair
Before the tenancy ends, the tenant may make the repairs or do the cleaning described in the itemized statement, as allowed by the rental agreement, in order to avoid deductions from the deposit. However, the tenant cannot be required to repair defects or do cleaning if the tenant's security deposit could not be used properly to pay for that repair or cleaning.
Legal Relief Available
Legal actions for obtaining refunds of security deposits are available and a penalty against a Landlord who fails to comply with the law is available. Assuming one wants to use Small Claims Court (where no attorneys are allowed to argue) the maximum amount that can be recovered is ten thousand dollars, the maximum jurisdictional amount in small claims. (The tenant, even if the claim is for more than ten thousand dollars can waive the extra amount and still use the Small Claims Court.) For amounts greater than $10,000, the tenant must file in superior court. Note that normally the landlord has the burden of proving that his or her deductions from the security deposit were reasonable. You can file as many claims as you would like for up to $2,500 each, but you are only able to file two claims in a calendar year that ask for more than $2,500.
If the tenant can prove to the court that the landlord acted in "bad faith" in refusing to return the appropriate security deposit, the court can order the landlord to pay the amount of the improperly withheld deposit, plus up to twice the amount of the security deposit as a "bad faith" penalty. The court can award a bad faith penalty in addition to actual damages whenever the facts of the case warrant - even if the tenant has not requested the penalty. CC 1950.5 (l).
These additional amounts can also be recovered if a landlord who has purchased a building makes a "bad faith" demand for replacement of security deposits. The landlord has the burden of proving the authority upon which the demand for the security deposits was based.
Whether either party can collect attorney's fees if that party wins such a suit depends on whether the lease or rental agreement contains an attorney's fee clause. If the lease or rental agreement contains an attorney's fee clause, the winning party can claim attorney's fees as part of the judgment, even if the clause states that only the landlord can collect attorney's fees.
Attorneys seldom become directly involved in these types of disputes since the amount normally does not justify their fees. Absent an attorney’s fees clause as described above, the average attorney bill will cost more than the amount in dispute.
For that reason, the overwhelming majority of parties informally settle their claims or fight them out in Small Claims Court. And most fights can be avoided entirely by use of the inspection method described above and by some common sense compromise.
We have found, however, that more than most disputes, arguments as to the Security Deposit can escalate into truly intense confrontations in which emotions overcome thinking and the parties spend tens of hours and thousands of dollars fighting over a few hundred dollars in cost of paint, etc.
Chose the fight carefully. In many court systems, most notably San Francisco and Berkeley, there is a prejudice against landlords that can make their appearance in court a decision later greatly regretted. Even in more “even” legal systems in which the courts are not inclined to favor the tenant, few judges enjoy hearing about who failed to clean an oven or paint a wall.
The writer well remembers one friend who, furious at the landlord’s refusal to return a thousand dollars due to a stained rug, spent two dozen hours preparing a case complete with pictures, a video and experts, and was astonished to look up during the presentation to see the judge reading a pleading from another case while supposedly listening to the evidence so painfully prepared by my friend.
Over a beer the next day he was complaining bitterly when I pointed out to him that no one aside from the landlord and he really cared about whether the stain came from pizza or the previous tenant’s earlier pet dog and that he had lost track of priorities.
“Yeah, but I cost the landlord a bundle, I can tell you. He lost his entire day in court and had to give me the thousand dollars.”
“Fine. So, what’s the complaint?”
“It cost me more than that in lost work time and no one paid me for the hours I spent to prepare the case, It’s not fair.”
And I told him what I tell clients in cases large and small. “Courts are about money and power. Courts can’t give you more than money and only the money the law allows. You want fairness? Try some other forum. Churches abound.”
He laughed and drank some more beer and talked of baseball…and I knew his priorities had at last returned.