Lanlord/Tenant Law is not one of my general areas of practice, but like every lawyer, I have friends who often ask my advice about legal issues with which they are faced. Recently, a friend asked for my help in corresponding with her former landlord regarding charges taken out of her rental security deposit she felt were unwarranted.
As landlord/tenant issues are among the most common legal questions I receive from friends, I'd like to discuss rights and responsibilities regarding security deposits in this post. At the end I shall include a sample letter you can send to your landlord for return of your deposit.
Please note all information in this post is specific to California law. The laws of your state or jurisdiction may differ. Many states offer renter's handbooks that would include important laws, or you should contact an attorney licensed in your jurisdiction for assistance.
- L.J.
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The most common dispute between landlords and tenants is the return of the security deposit. A security deposit is money paid in advance of a tenancy by the tenant to protect the landlord against any damage that may occur to the property while the tenant inhabits it. Section 1950.5 of the California civil code addresses security deposits and a tenant's rights regarding return of the deposit.
Security Deposits
The maximum security deposit a landlord may charge is equal to two months' rent if the unit is unfurnished, or three months' rent for a furnished unit. The security deposit is just that - a deposit for the security of the unit. It is not a fee or last month's rent.
When you move out of the unit, you are entitled to a walk through inspection of the unit with the landlord. Always request one. At the walk through you will have the opportunity to dispute any claims of damage or depreciation asserted by your landlord if you disagree with such claims. You also will then have the opportunity to correct any problems.
If there is indeed damage to the unit, the landlord will deduct the cost for cleaning and repairs from your security deposit and will return the unused portion of the deposit to you. A landlord may not charge you for standard cleaning or repairs caused by ordinary wear and tear. For example, over time carpets wear down from ordinary foot traffic - if they didn't we would never have to replace them. Carpets typically have a life expectancy of 5-10 years, with 7 years being the most common expectancy. Your landlord may not deduct the cost of the ordinary wear and tear from your security deposit. However, if you invited 300 of your closest friends over to walk around in their muddy shoes and your formerly white pristine carpet is now black, your landlord can charge you for the cleaning or for depreciation to the carpet.
Your landlord should include an itemized list of any repairs and the cost of such repairs when returning your deposit. Any repairs made by a third party (cleaning company, painter, contractor, etc.) should include a copy of the invoice. The landlord must include a description, total cost, hourly charge and time it took for any repairs made by the landlord or his/her staff. All charges must be reasonable.
Depreciation
A landlord may also deduct any charges for depreciation from a tenant's security deposit. Depreciation is the decrease in value due to use. Most items depreciate over a certain life expectancy, but heavy use may decrease its useful life. Examples of items in a rental unit that may depreciate include the carpets, tile or other flooring, cabinets, appliances, doors, etc. Let's consider the example of a dishwasher.
Terry Tenant used the dishwasher at her rental unit in many ways in which it was not intended, including giving her car engine a thorough cleaning through the "pots and pans" cycle. The oil, grease and grime residue, as well as the heavy engine caused irreversible damage to the dishwasher. Terry Tenant is moving out and Larry Landlord discovers he will need to buy a new dishwasher in order to rent the unit. He wants to charge Terry for having to replace the dishwasher, but it is not fair to charge Terry the entire cost, as future tenants will benefit from the new dishwasher, and previous tenants used the old dishwasher. Thus, depreciation is calculated using the life expectancy, useful life and cost, and Terry is only responsible for this cost.
The IRS depreciation schedule for dishwashers is 5 years. Let's say Terry lived in the unit for 1 year, and the dishwasher was already two years old when Terry moved in. So, the dishwasher needs to be replaced at 3 years old, but it should have lasted 5 years. Thus, the dishwasher should have lasted for 2 more years (5-3), but due to Terry's use now needs to be replaced. Terry will be responsible only for the lost life of the dishwasher, or 2/5 of the cost. If the dishwasher cost $1,000.00, Terry is responsible for $400.00 (2/5 x $1,000.00).
What Should You Do?
If you believe your landlord has over charged you for certain repairs or has withheld part (or all) of your security deposit without justification, you should first write a letter to your landlord explaining which charges you find unreasonable and why. You may wish to discuss the matter over the phone with your landlord, but be sure to also send a letter via certified mail, return receipt requested. Keep the letter on point and respectful. See the sample letter below.
If your landlord does not respond or refuses to return your deposit, you may want to file a lawsuit in California small claims court for the return of your deposit, court costs and possibly a penalty. If you believe your landlord is acting in bad faith in refusing to return your deposit, California law entitles you to recover twice the amount of the security deposit. As with any legal matter, you should contact a knowledgeable attorney if you have questions or concerns.
However, before you file a lawsuit in small claims court, you should stop and analyze the landlord's claims of damage. Did you leave the unit in the same condition as when you moved in? Are you sure the unit did not require any additional cleaning, painting, carpentry, etc.? Occasionally tenants are unrealistic about the condition of the unit and end up losing money going to court.
Real World Application
Below is a sample letter requesting the return of portions of the deposit withheld for carpet repairs. Please note the information in the letter is only an example for a specific situation. Be sure to include the relevant facts in your situation in the letter you send.
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Date
Sent Via Certified Mail - Return Receipt Requested
Larry Landlord
Landlord Properties
123 Main Street
Anytown, USA
Re: Return of Security Deposit
Dear Mr. Landlord:
I am in receipt of the check you sent to me for Three Hundred Fifty Dollars ($350.00) for the return of my security deposit ("Deposit Return") in connection with my lease of the property located at _______[your address]__________________________________ (the "Property"). I dispute the Check Out Report and Statement of Charges ("Check Out Report") you included with the Deposit Return.
As you know, we executed a Residential Lease ("Lease"), for lease of the Property beginning ____[beginning date]_____________ and terminating _[end date]_____________. In accordance with Section 4 of the Lease, I agreed to pay a security deposit of Eight Hundred Fifty Dollars ($850.00) ("Deposit") and made such payment on the date the Lease was executed. In accordance with the terms of the Lease, the Deposit was to be returned to me, less any fees or sums due, within twenty-one (21) days of my vacating the Property. I vacated the Property on _______________ and completed a thorough cleaning of the Property prior to my departure. There were no damages to the Property beyond ordinary wear and tear.
The Check Out Report you sent indicated the total damage, cleaning and repair charges amounted to Five Hundred Dollars ($500.00) which was subtracted from the Deposit. However, the charges indicated on the Check Out Report are unwarranted and unreasonable and should never have been deducted.
The Check Out Report included the following charges:
Pre-treat and deodorize carpet before steam clean $50
Carpet Steam clean XYZ Carpet Cleaning Invoice $150
California law permits a landlord to retain any portion of the security deposit to restore the premises to the same condition at the commencement of the tenancy, excluding any normal wear and tear. Cal. Civ. Code § 1950.5(b). I regularly kept the carpets of the Property clean by [weekly vacuuming, regular steam cleaning, etc.]
I understand that landlords systematically steam clean the carpets of an apartment before a new tenancy begins. However, California law only requires me to leave the Property in the same level of cleanliness as it was when I moved in. Any repair needed at that time was due to normal wear and tear and cannot be withheld from the security deposit. Cal. Civ. Code § 1950.5(b).
Additionally, the Check Out Report included a Three Hundred Dollar ($300.00) charge for "Depreciation of carpet." As the above paragraph states, the carpets were cleaned on a regular basis and never sustained any damage. [If you took photographs or have other evidence of the state of the carpets, mention it here]. There is nothing to indicate the charge for depreciation was anything more than reduction in value due to normal wear and tear over the life expectancy of the carpet. Moreover, the Check Out Report did not include the formula used in calculating the cost of depreciation. Carpet depreciation must be calculated using the cost of repair, life of the carpet and length of the tenancy. You will need to provide such information, including your depreciation schedule with the Internal Revenue Service (IRS) to justify the depreciation charge.
Further, charging fees for cleaning the carpet and for depreciation to the carpet is conflicting and cannot be reconciled. As a landlord may not charge for ordinary wear and tear or standard cleaning before a new tenant assumes the premises, the fees you imposed for cleaning the carpets of the Property suggest you believed there was damage to the carpet beyond normal wear that could be resolved through cleaning. However, charging for carpet depreciation implies the damage to the carpet could not be resolved through carpet cleaning and thus had resulted in a decreased value of the carpet. Furthermore, there is no reason fees for carpet cleaning or carpet depreciation are warranted as the carpet was in the same condition as when I moved in.
While I believe it is in both of our interests to resolve this amicably, I am prepared to pursue this matter [in mediation in accordance with the Lease, and] in Small Claims Court, if necessary. You should be aware that unreasonable charges by a landlord, such as those included on the Check Out Report, are determined to be in bad faith and can result in a penalty of twice the security deposit as well as any amounts improperly withheld. Cal. Civ. Code § 1950.5(l). Additionally, California law permits the award of attorney's fees, should this matter go to court.
I dispute all charges contained in the Check Our Report as they are caused by normal wear and tear and thus are unreasonable under California law. I demand you return the remainder of my Deposit which was unreasonably withheld, Five Hundred Dollars ($500.00) within ten (10) days to the address below. If I do not receive response from you within this time frame I shall be forced to take further action.
Please be advised that I reserve all rights and remedies available to me not explicitly stated herein.
Very Truly Yours,
Terry Tenant
Disclaimer: This post is offered for informational purposes only and should not be construed as legal advice. Your comments are welcome at legaljunck@gmail.com, but contacting me, commenting below and/or reading this article does not create an attorney/client relationship. If you require legal assistance you should contact an attorney licensed to practice law in your jurisdiction.
Lindsay Junck is California attorney practicing business, corporate, internet/technology and intellectual property law. This and other articles are available on her website, http://www.legaljunck.com/.
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