Can Landlord Keep Security Deposit?

Question: Some time last year, I entered into a month-to-month rent contract for a two-bedroom apartment at $600 per month with one month rent in advance and a deposit of $1,000. I moved in, paid a month’s rent of $600 plus a deposit of $500, the balance of $500 to be paid the next month.

However, once I was in the apartment I noticed several defects--broken louvers in all windows, leaking water in the bathroom, defective heater, broken garbage disposal in the kitchen sink, defective gas stove that wouldn’t light without a match--so I decided to move out the next month after staying for only 28 days.

I demanded a refund of my deposit, but the landlord came back with a reply containing phony charges of damage that she alleged I did to her apartment in the 28 days I was there. Obviously, she wanted to justify her withholding my deposit money.

Has the landlord the right to hold the security deposit of $500? If not, how could I get my money back? --A.F.A.

Answer: This is one of the most common legal problems between landlords and tenants--the security deposit.

Your landlord does have the right to keep that portion of the security deposit reasonably needed to repair any damage to the premises that you caused. So even if the bathroom faucet was leaking when you moved in, if the kitchen sink is now leaking, the deposit may be used to repair the sink. However, the money is not supposed to be deducted for ordinary wear and tear--although it sometimes requires a small claims court judge to decide what is ordinary and what is not. The deposit can also be used to pay for necessary cleaning.

You are not required to pay for damage caused by a previous tenant. So all the defects you noticed when you moved in should not be the basis for any repair deductions. The trick, of course, in a dispute such as this--when it will probably be your word against the landlord’s--is to have handy some helpful evidence, like a picture of the premises including all the broken louvres. (Although I don’t know how you’d get a picture of a leaky faucet or a broken garbage disposal.)

It’s not a bad idea, generally, whenever you move into a rental property to take some photographs so you’ll have a record of the condition in which you found the place. And try to have the photos developed by a shop that date stamps them on the back, to help prove when they were taken.

If you want to try to get your money back, first try to be reasonable. Send the landlord a carefully written letter explaining your position, demanding the return of your deposit, and threatening to take your case to small claims court if she isn’t reasonable. And be willing to compromise. If you can get back $300, I would take it. (Small claims court judges often compromise too, so going to court may not get you much more and will take a lot of time and energy.)

If you want to be technical (and sound like you know what you’re talking about) refer to Civil Code Section 1950.5 as the basis for your complaint. Of course, first you should read it--try your local law library. The section defines the applicable law, but good luck trying to understand it. In the words of one judge, it “teeters on the brink of unintelligibility.”

But the landlord may have another claim on your money. The security deposit can also be used to cover unpaid rent. You were renting on a month-to-month tenancy, and it sounds as if you didn’t give 30 days notice, so the landlord may claim that the deposit was used to cover the rent that was due for the last 30 days. The landlord has a duty to mitigate the loss--and try to find another tenant quickly, but you may have an uphill battle proving that another tenant could have been found and moved in within a few weeks.

In any event, if you decide to go to small claims court, let me know how you do.