Renters Should Exercise Their Rights Regarding Security and Cleaning Desposits

Landlord/Tenant laws vary from state to state, so this article pertains specifically to California Law, but check the Civil Code in your state to know the extent of your rights to your deposits upon vacating your rented or leased residence. Consumers might be surprised to find out how many landlords, especially of large complexes, routinely hold funds they have no right to hold. When you pay rent, you are providing your landlord with income. When you submit a deposit you are providing your landlord with investment capital. You are entitled to the principal from that investment back upon vacating the premises, and in most cases, with interest. Make sure you get it.

Things tenants should be aware of immediately, before signing any lease or taking occupancy of any domicile, are their rights. Tenants who have excellent credit histories and want to maintain them are equally as vulnerable to being shortchanged with regard to their deposits as are tenants with no or a poor credit history who may feel they need a prior landlord as a reference in order to rent again. No landlord can threaten your good credit history as a means of extorting retained deposit fees, nor can a landlord threaten to jeopardize your future tenancy as a means to attempt to retain all or part of your deposits. Any such landlord would be subject to civil penalty if they did engage in any such threatening or intimidating behavior.

If you sign a lease before taking tenancy of an apartment, house, condominium or other multiple dwelling unit (MDU), be advised up front that unless the terms of that lease comport with your state's Civil Code, portions of the lease may be unenforceable. Also, if the landlord or property manager fails to provide you with 'tenantable' quarters from the moment you move in (or the beginning of the lease term) until the moment you permanently vacate the premises, then any financial responsibilities of the tenant pursuant to the security or cleaning deposit are likely voided. "Tenantable" (consult section 1941 of the California Civil Code for the full definition) means free from pests, clean, safe and free of avoidable nuisance. If there is a health hazard in or around your residence and you have advised the property owner, landlord or property manager of the problem and nothing has been done, then it is likely the property is not strictly tenantable under requirements of the Civil Code. This is a worst case scenario, but it is something tenants should be aware of up front. If your move in date was September 1, and on September 1 the old carpet is still in your unit, or the walls haven't been painted or some repair remains uncompleted, your unit is not tenantable. If you have to stay in a motel for three nights until the unit is ready, that's really on your landlord's dime, unles you mutually agree to move in later without extending your lease period.

When you prepare to move into a leased or rented domicile, make a full inspection of the entire unit or house, interior and exterior. Turn on appliances, run the water, flush the toilets. Insist on a walk through on the day you take occupancy and even if you don't have a lease document, buy a standard lease form or download one from the internet and initial on that document the condition of the unit or house. Are all walls freshly painted? Is carpet new and/or recently cleaned? Note any stains, dings, mars to flooring or carpeting. Try all door handles and locks, check that all windows open and close properly and lock securely. Note any damage to appliances, doorways, plumbing. Look under the kitchen and bathroom sinks for leaks. Smell the closets, note any moisture damage. Keep your list with you for the full term of your residency. Take a video or photos as a record of the move in condition. Do it on the day of move in or the day you accept the keys - not later. If the landlord gives you keys and says some things will be fixed later, shame on you for taking the keys. Take 'as is' pictures if you do take the keys and don't get left on the hook for repairs that might or might not get made later.

If your landlord or property owner fails to do a walk through with you or chooses not to, know that the landlord or owner then has NO RIGHT UNDER THE LAW (in California) to retain any portion of your cleaning deposit or security deposit at the time you vacate unless he or she can prove unreasonable damage occured and you caused that damage. The burden of proof is on the landlord in that instance. Also, under California law, no portion of your cleaning deposit may be retained to paint or to clean carpet for more than a 30 day tenancy, even if the lease expressly says a carpet cleaning fee will be assessed. Any painting or carpet cleaning, even replacement for minor damage, is considered "normal wear and tear" under the Civil Code. All too often landlords routinely take $100-500 out of the deposit for such normal maintenance that would be required of them in order to make the unit or house 'tenantable' for the next occupant.

Now, don't think if you damage someone else's property or live like a pig that you walk away without paying. No, if you let toilets overflow and cause water damage repeatedly, or if you don't take out your garbage and pests abound, or if you punch a hole in a wall on a bad day, you are losing some of your deposit. And in the case of property damage, it would be the security deposit, which is retained for a separate purpose than the cleaning deposit.

The cleaning deposit can only be applied to extraordinary cleaning requirements upon vacancy (note exceptions for pets). If the carpets must be steam cleaned and the walls painted and you paid a $500 deposit and cleaned the unit, you should get it all back. If the carpet was clean when you moved in, inspected and signed off on mutually, and you did a walk through upon vacating and stains were noted on that move out walk through that a normal steam cleaning couldn't handle and some carpet had to be replaced, your cleaning deposit can be applied to that replacement. You deserve a receipt for the amount being deducted. You can even ask to view the new carpet.

The security deposit is really collected to ensure against a tenant moving out without paying the last month's rent, or damaging the property without fixing the damage. For example, if you kick in a door in the house and don't fix it, that comes out of your security deposit. Now, if a burglar kicks down the front door, that is not your liability. If the unit or house is ever vandalized or someone breaks in or attempts to and damages any property, make a police report, even if you don't suffer any loss. Call your landlord or property manager any time you notice such damage. If there is flooding, leakage from rain, sewer backs up, etc. - call the landlord or property manager. Always note and document any such contacts. If you request something to be fixed, make sure it is fixed. If you fix it yourself either at the landlord's request or because there is no reply to a request for help, save your receipt, document the purchase and the repair. Remember, tenancy is a cooperative venture - you are getting a place to live and the owner is hoping to maintain property value while earning income from your rent. If you do something that lowers the property value, the landlord or property manager has a right to address the situation. If you park your car on the lawn, you can be charged for damage. If you allow any criminal activity to take place in the unit or house, you can be evicted and assessed damages. If you smoke in bed, be prepared to pay the price. Now, if you choose to make repairs or even improvements on your own without consulting the landlord or that are not required, then that is your charitable contribution to his asset. You cannot ask for that money back unless the repair was by pre-arrangement and/or was necessary to make the unit 'tenantable'.

Okay, so it's time to move out, twelve months after moving into your apartment or house. You've been a good tenant. You paid the rent on time every month. You kept the unit clean. You reported any nuisance, damage or concerns. You give your notice at least 30 days prior to planned vacancy, which will occur at the end of your 12 month lease. Oops, your lease says you have to give 60 days notice to vacate or renew, or you revoke a portion of your security deposit. Your property manager or landlord leaves you a voicemail advising you that you can't apply the security deposit to the last month's rent as you've violated your lease. DING. Violation of the Civil Code, unenforceable lease term. First thing, make sure your notice of intent to vacate and/or of intent to terminate lease, arrives in writing 31 days before vacating and before end of prior lease term (if it is a lease). Just that one extra day ensures you won't have any trouble. If you can do it 35 or 40 days, even better, but the law doesn't require it. Don't rely on a phone call as a record, do it in writing, but also call as a courtesy. If you get a notice in writing or a phone call that you've violated the lease, send a letter back citing the Code Section (I'm not doing your homework for you here, read Sections 1940-1954 of the Civll Code and other sections of that article to know your full rights) that allows you to vacate on 30 days' notice.

You're all packed up, the moving van is gone and you've cleaned the unit. Is your landlord or property manager there to do a walk through? Yes? Great, get out your earlier pictures and checklist as well as a move out checklist and note the condition of the unit or house - take move out pictures. They don't show up? Great, make your own list and document it with pictures. If you've cleaned your unit and left it in move in condition (walls and carpets excepted), give your landlord a letter upon move out requesting that your cleaning and security deposit be mailed to you within 30 days of end of lease term and/or vacancy. Note the Civil Code in your letter. You should receive your full deposits back within 30 days. If they don't arrive, send a letter on the 31st day, get out your calculator and let the landlord know you are expecting your $500 (for example) cleaning deposit and $1,000 security deposit, plus compounded interest for each day the balance is late getting to you at the current basic savings interest rate or the rate stated in your lease, if different. Advise your landlord in the letter that if the check is more than 15 days delinquent you will file a civl action in small claims court, which would add court costs to the amount owed you.

If fifteen days go by and you have not received the check, please call your landlord to inquire as to where the check is. If you have not received the check send a second letter at 60 days since vacancy point demanding the payment plus interest and note that this is your final notice to the landlord and the small claims action will be filed if you do not receive the full balance due to you within 48 hours. Keep copies of all correspondence. If you don't get your check as prescribed, file the action, but also send a detailed demand letter citing Civil Code Sections you believe are appropriate and why the deposit should be returned. Always try to resolve things outside the legal process if possible. But, go ahead and file and be prepared to follow through. It is an easy process. You will request compensation for the full amount of unpaid deposit, plus the stated interest, and your filing fee and any service fee you have to pay in order to serve the landlord or property owner with the notice of small claims action. Many landlords push this envelope and refuse to pay even though the law is on your side. Don't be intimidated. Go get your day in court. You will walk away with an order for payment. The law is black and white here.

Now, what if when you prepared to move out there were other lingering issues? Let's say the landlord failed to pay for garbage service and garbage piled up and pests arrived. You reported this but the garbage sat for weeks on end. (Call the health department if this does happen.) Let's say you live in a duplex and the landlord rented the other side to a couple prone to domestic violence. You don't have to put up with fighting in the unit next to you. Report it, call the police. Call your landlord too. A tenantable unit is free from pests or violence. Or, maybe during the course of your tenancy your landlord was supposed to fix the leaking roof or leaking pipes and did not do so despite calls from you and written requests for repair. That's not a tenantable unit. You are just glad to get out at the end of your lease. Well, on top of that $1,500 you are owed, plus interest for your cleaning and security deposits, your landlord is also now liable for civil damages of $2,000 (as of date I write this) for failing to provide a 'tenantable' unit. If you're making that small claims filing, note this as well. Even large corporations that run beautiful housing complexes make mistakes sometimes and don't address tenant issues and don't return deposits. So, don't be afraid to go up against Goliath. The law is still the law. If you lived in less than tenantable surroundings for any part of your tenancy and if you didn't get your $1,500 deposits back - the court is going to award you $3,500 plus your costs. Just keep your documentation, organize it into separate tabs for each item and present it to the court. If Section 1941 was violated on September 1- September 30 by failure to pick up garbage, have a Section 1941 tab, the dates the garbage wasn't picked up, and any documentation you have of your notice to the landlord of the conditions, even if it's just a phone log. If there was a walk through but some items weren't addressed, put the checklist, photos, and any other documentation (even if you don't have photos, use the checklist) - and note the voided items and why the cleaning deposit can't be retained. Be organized. You will get your money back.

Every month millions of people vacate rented and leased properties and aren't given their full deposits back. Some landlords think as long as they give you $200 or $500 you will be happy. Especially with lower or moderate income tenants or those with litttle credit history or poor credit history, the landlord sometimes thinks you should be grateful for what you get and you were lucky they rented to you. Well, you have the same rights as everyone else, so don't take that $200 if you are really owed $500. Be insistent. Even if you get a letter saying here are all the itemized reasons why $999 of your $1000 deposit is being retained, or if they send you a bill for $108 on top of your deposit. If you didn't damage the property, if all that was left behind was normal wear and tear, YOU ARE OWED money. Keep the landlord's demand or explanatory letter, and send your own letter back citing the law and why you want your full balance back, and/or why you do not owe the landlord any balance. Those deposits were in the bank earning interest for the landlord while you were in the house, or they were being invested in even more lucrative property. You provided investment capital. Unless you violated the terms of the Civil Code regarding tenancy and caused property damage above and beyond normal wear and tear - you are entitled to the principal of that investment capital back. And in most cases, you are entitled to it with interest. Even if you sometimes paid rent late, but always ended up paying the full amount plus any late fees, you still get your deposits back if you otherwise fulfilled the lease and left the unit in move in condition.

If you present yourself as knowledgeable of your rights (and obligations) you stand the best chance of being treated fairly. Also, often landlords themselves are ignorant of the law and they may only be repeating practices they have witnessed or experienced. If they don't reside in your state they may have deferred to a local property management team, or may be using uniform leases or tenancy rules that aren't applicable in your state. Most often there is no malice intended, and even if you do have to go to court to get your resolution, it may be a learning experience for the landlord as well. Be fair, be reasonable, but know your rights and remember that deposits are for safe keeping and eventual safe return.