FAQ: Tenant Security Deposits

Key rights:

  • Deposit cannot exceed two months’ rent for unfurnished unit
  • Tenant can demand pre-move out inspection
  • Tenant is entitled to deposit back within 21 days of move out
  • Legitimate deductions must be documented in writing by landlord
  • Landlord cannot withhold for ordinary wear and tear

Tips for protecting your deposit:

  • Document the unit’s condition when you move in. Use a checklist and take photos.
  • Request a pre-move out inspection to give yourself an opportunity to fix things before moving.
  • Provide proper written notice specifying when you are going to vacate in order to avoid rent being deducted from your deposit.

How much can a deposit be? 

A deposit cannot exceed two months’ rent for an unfurnished unit or three months’ rent for a furnished unit. Civil Code 1950.5(c).

What about interest?

California law does not require landlords to pay interest on security deposits.  Some tenants are entitled to interest under local laws in the following locations: Berkeley, Hayward, Los Angeles, San Francisco and Santa Cruz.

When do you get it back?

Deposit must be returned, or withholdings documented, within 21 days of the tenant’s departure. Civil Code 1950.5 (g)(1).

What can the landlord withhold?

Deductions from the deposit may be made for unpaid rent; costs to repair damages caused by tenant or tenants’ guests; cleaning of unit to return the unit to the same level of cleanliness it was in at the inception of the tenancy; and other limited bases. A landlord cannot deduct for ordinary wear and tear.  Civil Code 1950.5(b).

You can start protecting your deposit at move-in:

Document the unit's condition when you move in. Many landlords will provide you with a move-in checklist . Even if the unit is in good condition, every problem that you detail in completing the checklist is one less problem that might be used to justify a deposit reduction after you move out. In your checklist, note holes, cracks or stains as well as more serious problems. Complete a checklist even if the landlord fails to provide you one. If the landlord's checklist is incomplete, then add areas or problems to the checklist. If the landlord doesn't sign off on a dated checklist, then mail a dated checklist to the landlord with proof of mailing. You can also take photographs of the unit, with particular focus on any damaged areas, preferably with a camera that includes a date stamp.

And you can work to protect your deposit before you move out:

 First, be sure to provide proper written notice specifying when you are going to vacate. If you are leaving before the expiration of the lease, you may want to consult with an attorney or tenant counselor. If you are leaving a month-to-month rental, send your landlord a letter providing at least thirty days notice and specifying the departure date, and make sure to obtain proof of mailing. If you don't provide sufficient notice, the landlord will likely try to deduct a month's rent from your deposit.

Second, ask for a pre-move out inspection. California Civil Code 1950.5(f) entitles the tenant to demand that the landlord do a walkthrough inspection of the unit in the two weeks before departure. If the landlord doesn't agree with the date that you select, then the landlord must provide forty-eight hours notice of the inspection. After the inspection, the landlord must provide you with a detailed list of damages or cleaning needs that would result in withholding portions of the deposit . The purpose of the process is to allow the tenant to fix the damages or provide the cleaning rather than lose portions of the deposit. The higher the amount the landlord plans to withhold, the more you need to document your repair or cleaning efforts with photographs or video.

What if property ownership changes?

If the owner sells your building, Civil Code Section 1950.5(l) requires the landlord to either transfer the remainder of the security deposit to the new owner or return the remainder of the deposit to the tenant. The new owner assumes the same rights and obligations with respect to the security deposit as applied to the prior landlord. Civil Code sec. 1950.5(k).  Both the original landlord and subsequent landlords are liable to the tenant if the deposit is not returned.

What to do if the landlord doesn't return your deposit: 

If the deposit is not returned, consider writing a certified letter to the landlord demanding the deposit and/or filing a lawsuit. The landlord may be liable not just for the amount of the deposit, but in cases of bad faith for up to two times the amount of the deposit as a penalty. Civil Code sec. CC §1950.5(l).  You can sue in small claims court for up to $10,000

Should tenants hire a lawyer?

Generally, cases regarding security deposits are handled in small claims court where all parties represent themselves. It rarely makes economic sense to hire an attorney to handle a case exclusively about a security deposit, since you may well end up paying an attorney more than you could hope to recover from the landlord. It may be worth hiring an attorney in situations where the deposit is particularly large and the landlord is blatantly acting in bad faith. Also, if you have other disputes with your landlord, you may want to consult with an attorney about whether it would make sense to combine your security deposit claim with other claims in a single lawsuit where you are represented by an attorney.

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