What Happens When Landlord Lags in Returning Deposit

Question: It has been over two months since we vacated a home that we had rented, and we still have not received any accounting of our security deposit.

Our lease states, “No later than three weeks after tenant vacates the premises, landlord shall furnish to tenant an itemized written statement of the basis for, and the amount of, any security deposit received and the disposition of the security and shall return any remaining portion of the security to the tenant.”

We have contacted the landlord via phone and letter. His only comment is that he is still waiting to be billed for some minor damage we did to the home. We don’t feel that this is our problem and he must return our deposit within three weeks, per our lease. What is our recourse? Are we entitled to interest for the time elapsed?

Steven R. Kellman, director of the Tenants’ Legal Center, replies:

The law requires that the landlord account for, and send whatever refund is due, within three weeks of moving out. Deductions for cleaning and repairs of items damaged in use exceeding normal wear and tear are permitted.

Under the security deposit law, there is a penalty of up to $600 if the landlord has, in bad faith, failed to do that accounting or refund within the time specified by law.

The lease in this case happens to specify the same three-week period as is required by law. The parties may agree on a shorter period to return the deposit but not a longer one.

Here there were phone calls and letters with no receipt of an accounting or a refund by the landlord even after two months. Thus, the landlord may be guilty of breaking that law and may have to pay the penalty to the tenant.

There used to be a provision in the law allowing for interest on deposits held beyond two weeks, but that was eliminated a few years ago. There is no requirement to pay any interest for the time the deposit is held during the tenancy.

In a situation like this, the tenant may file a Small Claims Court case asking for the return of the deposit and the $600 penalty along with attorney fees (if one was consulted) and court costs.

Property manager Robert Griswold replies:

There is another issue that should be discussed here. Namely, what does a landlord do when the tenant damages the premises in such a way that it will take longer than three weeks to determine the cost of the repairs?

Of course, the actual repairs do not have to be completed within three weeks, as the landlord only needs to determine the proper deduction per code section 1950.5.

Routine items such as cleaning and painting are very easy to estimate; however, damages to certain items (for example, the kitchen or bath cabinets) can be very difficult to estimate or even find reasonably priced replacement parts.

Therefore, under certain circumstances, it can be difficult for the landlord to respond in the legally prescribed time frame. Though there are no exceptions in the code, typically the Small Claims Court will look to the actual facts of a case concerning the claim that the landlord did not remit the security deposit in a timely manner.

Thus, I always suggest that the landlord send a detailed preliminary accounting of the security deposit, including as much of the security deposit as possible, and include an explanation as to the status of any pending item(s).

Naturally, the landlord must finalize the legally required accounting as quickly as possible and must be able to support that his actions minimized the delay in the return of the security deposit.

At an Impasse Over Carpet Replacement

Q: I have lived in an apartment for several years and I have complained about my carpet for more than a year. It is delaminating, which is when the backing is separating from the fiber or nap of the carpet.

The manager says they will replace the carpet only if I remove all of my furniture myself. I cannot afford this expense, plus I am concerned that they will buy such cheap carpet that I will be asked to move my furniture again.If they would buy a good-quality carpet that would last 10 years, I would be willing to pay for the furniture removal. Do you have any advice?

Griswold replies:

Clearly the delaminating of the carpet poses a health hazard and should be replaced by the landlord at his or her expense, including the moving of your furniture.

Most carpet suppliers will charge the landlord a nominal sum to re-carpet a furnished unit. It sounds like you have been a good tenant for several years and have plans to stay; therefore, a wise landlord should be happy to pay the slight additional cost to move your furniture. I would present this argument to him or her.

If the landlord does not cooperate and you are faced with paying to move your furniture, it may be wise to move to another property at this time. I am sure there are many owners that would appreciate your business.

Kellman replies:

The landlord has the obligation of replacing the carpet when the carpet becomes so old and worn as to be a safety and health hazard. It appears that if the tenant wants new carpet, he or she must move the furnishings out. But if the tenant can’t afford to do that, the landlord does not buy the carpet. Thus, the landlord has set up a situation in which he or she does not have to buy the carpet.

This is certainly unfair to the tenant, who has done nothing wrong and asks only to have the maintenance done that is needed. It is pretty well-accepted that if the unit floods or if it needs to be tented for insects, the landlord pays for the day or two in a hotel for the inconvenience. I think the landlord should pay for this inconvenience also.

Unfortunately, the only way to force the landlord to do this is in the courts. Thus, if any compromise can be reached, it would be preferable to going to court.

Trailer Park Fence Badly Needs Repairs

Q: I live in a small trailer park that has a wooden perimeter fence that is very old and weathered. Many of the boards are broken, loose, missing or splintered. I feel that this is a safety hazard to my children and other residents.

When I complain to the owner he replaces some of the boards, but only with similar old boards from another fence at another trailer park he owns. Is it reasonable to ask them to properly repair or replace the fence? In the past, the owner has blamed my children for the damaged fence. Can he force me to pay to repair or replace the perimeter fence?

Ted Smith, principal in a law firm representing landlords, replies:

The trailer park landlord cannot force you to repair or replace the wooden fence. By the same token, however, you may not withhold rent on your trailer based on his failure to properly take care of the fence.

The fact that it is dangerous puts him at increased risk for injury claims--a fact that his insurance carrier would not be happy with. He blames the children, but he’ll have to prove with solid evidence in a court of law that the children are, in fact, breaking the fence.

Try to get together with the other trailer park residents and the landlord to work out this problem. Perhaps the costs for repair and replacement could be shared between park ownership and the various residents.

Tenant Is Frustrated Over Broken Washers

Q: I live in an apartment building where the landlord has washers and dryers in the common area for the tenants to use. Unfortunately, the machines (all of them!) are routinely broken. Can I withhold my rent? Can I deduct the cost if I have the machines repaired?

Griswold replies:

No, you should not withhold rent, because common area washers and dryers are not essential habitability items as specified in the California Civil Code. Nor should you attempt to have the machines repaired yourself and then deduct the cost from your rent.

Common area washers and dryers are merely an amenity that the owner provides as a courtesy to the tenants.

I suggest that you send a letter signed by you and other tenants expressing your serious concern over the continued disrepair of the machines. Many times landlords are frustrated, as there may be a problem with excessive theft or vandalism.

Ironically, a single break-in to coin-operated laundry equipment can result in damage of several hundred dollars, while the actual loss of coins is only a few dollars.

A landlord’s frustration in these circumstances is understandable, and unfortunately it is the law-abiding tenants who suffer.

In this case, try to work together to develop a solution to make the laundry equipment more secure. Even eliminating the coin-slide equipment and offering to pay a slightly higher monthly rent might be an alternative that benefits everyone.

Of course, the landlord’s continued failure to address tenants’ concerns will lead to the best tenants leaving the property to live where their tenancy is appreciated and the landlord and tenants work together to solve problems.

Kellman replies:

Under California law, a tenant may withhold rent under certain circumstances in which the conditions of the rental are so bad as to affect the health and safety of the occupants.

For example, the lack of heat, plumbing leaks, insect infestation, etc. The tenant must first notify and afford the landlord an opportunity to do the repairs.

There are many conditions, however, which occur at rentals that do not affect habitability, such as inoperative washing machines. The law will not allow the withholding of rent for these types of problems, nor may the tenant repair such machines and deduct the cost from the rent.

The tenant may, however, consider the landlord in breach of the contract and take the landlord to Small Claims Court for the inconvenience caused by the broken machines. Tenants should be aware that withholding rent might result in an eviction. Therefore legal advice should be sought before taking such action.