How to Get Your Security Deposit Back From Your Landlord

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Ask a Tenants Right’s Lawyer is your chance to learn how to survive as a renter in San Francisco. Attorney Daniel Wayne has a lot of the information you need to keep you in your home. This month’s topic: How your broke ass can get your security deposit back. For an expanded version of this article check out Daniel’s blog: www.wayne-law.com/blog. Got a question? Send an email to alex@brokeassstuart.com and we will forward it on.

We all know the security deposit. You move into an apartment and you plop down a large chunk of change – first month’s rent, a deposit, and sometimes even last month’s rent. And for anyone that was ever an irresponsible college student – or adult (naturally this never included me), it makes sense. Your landlord wants to ensure that they can hold you accountable for any damage you do to the property without having to chase you down for it.

The problem is, some of the less couth landlords out there may make you chase them down to get your deposit back, or will withhold a portion of your deposit for what seems like a bogus reason. If I had a dollar for every call I get from someone in this position… I would have several dollars. In this month’s edition we explore what you can do to ensure you get your deposit back, and, if you don’t get it back, what you can do about it.

The Law

In California a landlord is generally only able to demand a security deposit of up to two months’ rent for an unfurnished apartment or three months’ rent for a furnished unit in addition to first month’s rent. The rules regarding deposits are covered by state law, not the San Francisco Rent Ordinance. Landlords cannot require a non-refundable deposit, and your landlord is required to return your deposit or otherwise account for how it was spent within 21 days of vacating the unit.

How can your security deposit be used?

Your landlord can only charge you for damage to your unit beyond ordinary wear and tear. What is ordinary wear and tear? I’ll put it this way – if you caused the damage with a bat, a ball, or a golf club, it’s probably a safe bet that it’s not “ordinary.” Put another way, it boils down to those things that are inevitable – paint won’t stay fresh for ever, carpets wear out, etc. etc. Sometimes landlords can be sneaky about this and try to charge you for a new carpet or to replace old appliances but as a general rule this is not something you are responsible for unless you caused the damage yourself by other than regular use.

Procedure for Returning Your Deposit

In addition to the requirement that your landlord return your deposit within 21 days, they have to provide you with a full accounting if they withhold return of any portion of it. That means they are required to send you receipts for replacement items they had to purchase, invoices for services they had to pay for, etc. If your landlord does not provide you with documentation, call them out by writing them an email or letter (remember, always keep copies) demanding to see the proof. If they refuse, or ignore you, you can use this as proof of bad intent later on (see below for details on what happens if they don’t give you the deposit back). Likewise, if your landlord submits a receipt/invoice that looks outrageous – $500 for a new towel rack? You should consider asking for an explanation in writing.

As I’ve stated before, putting things in writing isn’t just about getting your landlord to comply – it’s about creating a paper trail and memorializing your state of mind at a given time in the off chance you have to fight them through legal channels later on.

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Getting your full security deposit back?

The first and best thing you can do, actually goes back to when you move into a new place. When you move in make sure you carefully inspect the unit you are moving into with the landlord or a reliable witness (full disclosure: I just moved into a new place and totally didn’t do this. Do as I say, not as I do), and make sure that you point out any/all existing defects to your landlord. A lot of landlords use a checklist. Ask for a copy and hold onto it so you can check against it when you move out. You should also ask for a receipt for any you deposited, and/or make sure your lease reflects the deposit amount.

When you give your termination notice request a walk through with your landlord in writing. If your landlord refuses, write another letter to them memorializing their refusal to do so. You can potentially use these letters and this fact against them later on if they refuse to return your deposit as evidence that they did not give you a chance to cure the problems.

Assuming you do have an inspection, do your best to get definitive statements from your landlord, in writing about any issues that exist, so they can’t later claim there were other issues that they had told you about. Ideally you schedule the inspection so that you have time to correct any existing issues before you have to be out the door. Otherwise make sure your landlord gives you an itemized statement of deductions he wants to make from your deposit if you are leaving the unit in its current condition. If you decide to do some repairs before you move out, carefully document them, as the landlord cannot legally deduct them. Taking photos is also helpful.

Obviously the best scenario is to exchange the keys for the full security deposit on the date you move out. But as stated above your landlord is not legally required to pay the deposit at the time of the move.

What can you do if you do not get your security deposit back?

If your landlord fails or refuses to return all or part of your deposit, and/or to provide an itemized statement and proofs for any deductions, I always recommend writing them a letter asking for an explanation before escalating the situation on the off chance they forgot or sent it somewhere else. This will make you look more reasonable in the eyes of a Court if you have to go after them. If you still don’t get it back, or if you disagree with the accounting, your best option is generally to file an action in Small Claims Court. In addition to the disputed money, your landlord may be liable for penalties for improperly withholding your funds. Because most deposits are less than $10,000 Small Claims court is your ticket. Small Claims does not involve lawyers, and instead is just between the parties (think Judge Joe Brown). This means fewer expenses for you, and a faster resolution. It also means that it rarely makes sense to hire an attorney to try and recover the money for you, because at the end of the day your best recourse is Small Claims. This is where that documentation can be really helpful.

Ultimately getting your money back once it’s in your landlord’s hands can be a challenge. But with these tips, hopefully you will be better equipped to get that money back.