Landlord must prove deposit deductions 

Editor’s note: Christopher B. Dolan was recently involved in a serious motorcycle collision leading to a broken pelvis and shattered upper arm, both of which were operated on last week. So this week’s column is written by one of Dolan’s professional colleagues (and trial team leaders), Greg Schaffer, who focuses primarily on personal injury matters.

Our question is from Anne C. in Bernal Heights:

Q: What are my rights as it relates to my rental security deposit?

A: Return of a tenant’s security deposit is covered by Civil Code Section 1950.5. The security deposit is the property of the tenant, and sums can only be withheld for items described under 1950.5. These  include: 1) to remedy a tenant’s unpaid rent; 2) to repair damage; 3) to clean the unit; or 4) to restore, replace or return personal property. The deposit cannot be used to repair damage for “ordinary wear and tear” that occurred during the tenant’s term, or to repair any damage that predated the tenancy.

At the outset of the tenancy, there is no statutory requirement for the landlord to conduct a prelease or move-in inspection for damage and deterioration to the unit. Therefore, it is incumbent on tenants to protect themselves with an eye toward the end of the tenancy.

Prior to moving in, the tenant should request a joint walkthrough of the unit. The condition of fixtures, appliances, walls and carpets should be inspected with noticeable defects and damage itemized in writing. The tenant should take photographs of the condition of the unit and any damage. If the landlord agrees to remedy or repair apparent defects, the tenant should also document this in writing. An email to the landlord documenting the findings of the move-in inspection is sufficient. If the landlord fails to attend a joint walkthrough, tenants should conduct their own inspections and document damage.

Once the landlord or tenant has given notice to terminate the tenancy, the landlord is required to give the tenant written notice of the tenant’s right to request an initial inspection of the unit for damage. The tenant must then request the initial inspection. After the initial inspection, the landlord must give the tenant an itemized statement specifying the necessary repairs and cleaning, and the basis for any proposed deductions from the security deposit.

The tenant then has the opportunity to remedy the identified deficiencies “in a manner consistent with the rights and obligations of the parties under the rental agreement” to avoid deductions from the deposit. The landlord may use the deposit only for items in the initial inspection statement that were not remedied by the tenant. Of course, the landlord can make deductions for any damage that occurs after the initial inspection and before the end of the tenancy.

With or without the initial inspection, the landlord must provide an itemized statement and a refund check for the remainder of the deposit no later than 21 days after the tenant vacates.

The statement must indicate the basis for any amounts deducted from the security deposit. If the landlord fails to provide these two items within 21 days, the landlord forfeits the right to retain any portion of the deposit. The landlord must return the entire deposit to the tenant and attempt recovery for damage in a subsequent judicial proceeding. If the landlord retains the deposit in “bad faith,” the landlord may be subject to statutory damages of up to twice the amount, in addition to any actual damages the tenant has suffered.

So make sure to follow the steps above and document the condition of your apartment upon move-in and move-out. If the amounts in dispute are smaller than $10,000, you can go to small-claims court or you can hire a trial lawyer to protect your rights.

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