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PERSONAL FINANCE / KATHY M. KRISTOF

Rental Living: The Battle of the Security Deposit

October 02, 1994|KATHY M. KRISTOF

With roughly 5 million rental units in the state, it's not surprising that landlord-tenant disputes frequently dominate the dockets in small claims court and keep the phones ringing at the state Department of Consumer Affairs.

One of the stickiest battles between landlords and tenants is the use and abuse of security deposits, experts say.

Tenants often claim that landlords try to keep too much. Landlords say tenants abuse the deposit, trying to use it as their last month's rent rather than what it is: a financial cushion sheltering the landlord from damage to the dwelling.

However, there are fairly clear state rules governing tenant security deposits, including how much can be collected and how much can be withheld. Here's the rundown:

Q. How large a deposit can the landlord demand?

A. The most a landlord can require is an amount equal to two months' rent for an unfurnished unit or three months' rent for a furnished unit. However, the required deposit can be increased by another half-month's rent for tenants who have water beds or other water-filled furniture.

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Q. How much of the money is refundable when I move out?

A. All of it.

It is unlawful to characterize any portion of the deposit as "non-refundable." However, a landlord can legally use the deposited money to pay for cleaning and repairs and to compensate for "unusual wear and tear." The deposit cannot be used to pay for cleaning or repair of items that were damaged through normal wear and tear.

The pivotal issue is whether the items would have required cleaning or repair regardless of who rented the unit or if it was required specifically because of your actions.

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Q. My landlord deducted $60 for cleaning even though the apartment was cleaner when I moved out than when I moved in. Is that legal?

A. No. Some landlords hire a professional cleaning service to spruce the place up each time it is available for rent. But the cost should not be borne by the former tenant. You are liable for cleaning costs only if the unit is in worse shape when you leave than it was when you moved in.

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Q. Can I use my deposit to pay the last month's rent?

A. Technically, no. The deposit is supposed to ensure that you leave the apartment in reasonable condition. So landlords can require that the money is left untouched until they inspect your apartment after your departure. However, if you miss a rent payment, the landlord can withhold that amount from the deposit.

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Q. What if I move out before the end of my lease? Can the landlord keep the deposit for rent that I didn't pay but had agreed to?

A. Yes. But a landlord must attempt to reduce his or her loss--and yours--by trying to re-rent your apartment.

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Q. How long before the landlord must return the deposit?

A. The deposit must be returned within 21 days. If amounts were deducted, you're also entitled to an itemized statement.

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Q. What do I do if the landlord keeps all--or a portion--of the deposit without cause?

A. If the amount involved is less than $5,000, you can take the landlord to small claims court. Notably, if the landlord's behavior was unwarranted and egregious, in addition to recovering your deposit, you can get court fees and a "bad faith" award of up to $600.

However, make sure you're prepared before you go to court. Send the landlord a letter, clearly stating the amount in dispute and why you think it should be returned. Keep a copy. Take photographs of the apartment when you move out to prove that you didn't trash the place.

The clearer the case you present to the small claims judge, the better your chances of winning.

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Q. What happens to my deposit if the building is sold?

A. There are two possibilities. The landlord can either return the security deposits to the tenants following the sale or transfer the money to the new owner. Before returning or transferring the money, the selling landlord can deduct amounts from the deposit to pay for unpaid rent or damage, just as when you move out.

However, if such deductions are made, the landlord must provide an itemized list of the deductions.

Also, if the deposits are transferred to the new owner rather than returned, the selling landlord must notify the tenants in writing. The new landlord becomes responsible for returning the unused portion of the deposits when tenants move out.

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Q. Where can I get more information?

A. The California Department of Consumer Affairs offers a free booklet titled "California Tenants: Your Rights and Responsibilities." You can get one by calling (800) 952-5210.

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