Lately, I have been getting requests regarding terminating a tenancy. What is a tenant to do when facing the end of their lease or if there’s a desire either by the landlord or tenant to terminate the lease early? More importantly, and the most frequently asked question on this matter: what’s going to happen to the security deposit?
California Civil Code Section 1950.5 mandates that landlords have 21 days after the tenant vacates the premises to return part or all of the security deposit and, if the security deposit isn’t fully refunded, an itemized list of deductions.
So, a tenant wishing to maximize the amount return from their security deposit should follow some basic but important guidelines:
As soon as the landlord is aware that the tenant will be vacating the property, the landlord is required to give the tenant a written notice of the tenant’s options for a pre-move-out inspection of the premises, where the tenant has a right to be present at the time of the inspection, within a reasonable amount of time before to the actual move-out date.
- If the tenant agrees, the inspection needs to happen in the final two weeks with an agreed date and time.
- If no agreement can be reached on a date and time, the landlord can schedule an inspection within 48 hours of the notice.
My advice to tenants is to try to schedule the pre-move-out inspection well in advance of the actual move-out date, just in case there are noted issues/damages. This will allow the tenant plenty of time to remedy the situation on their own rather than leaving it up to the landlord to take care of it after the tenant has left. In many situations, the damages are minor and can be fixed by the tenants themselves at little cost, while landlords generally hire people to make repairs and pass the costs along to their tenants out of their security deposit.
When conducting the inspection, the landlord usually uses a move-out inspection form, which is typically the same as the move-in form, to note any damage/concerns. So long as the tenant is present, both the landlord and the tenant can have input on the notations on the form. From the observations at the inspection, damages can be evaluated and resolved. It is important for tenants to document the condition of the property both at the inspection and when they actually move out – in other words, take photos.
After the inspection, the landlord may or may not provide the tenant with an itemized statement of the landlord’s intended deductions from the security deposit. These can include professional cleaning, replacing the carpet, drywall repair, etc. Tenants should not presume that such a list will be provided before move-out and should insist on promptly getting a copy of the form they completed with the landlord at the inspection.
If a move-out inspection takes place prior to the tenant leaving, the inspection form must include a complete evaluation of the condition of the premises and both the landlord and the tenant will be bound by the notations on same, with certain exceptions; a landlord can include anything that was not listed on the pre-move out inspection only if the damages were hidden by the tenant’s possessions. For example, if the tenant’s furniture blocks a cracked baseboard or a hole in the wall, as long as the landlord can show that they did not have access to the area, it can be added to the list after the tenant vacates to hold the tenant liable for any necessary repairs. Tenants should compare the itemized deduction list, provided by the landlord with the return of their security deposit, with the move-out inspection report and the tenant’s own notes.
Allowable deductions:
- Repairs for damages other than normal wear and tear.
- Cleaning (the residence must be clean as it was when the tenant first moves in).
- Replacing or repairing personal property, such as garage door remote or keys.
What is not deducted:
- Normal wear and tear, such as faded paint (lifetime of paint: 3-5 years), worn carpet (lifetime of carpet: 5-6 years), or loose grout on bathroom tiles (lifetime of tiles: 25 years).
- If the residence is as clean moving out as when the tenant moved in, then cleaning costs may be objectionable.
- Defects to the premises existing prior to the tenant moving in.
- Any damages not noted by the landlord in the move-out inspection, unless the landlord was unable to ascertain the same due to the tenant’s possessions.
Possible deduction – additionally, unpaid rent may be taken out of a security deposit only if the lease specifically provides for such a deduction.
Additional Words of Advice: During the move-out inspection, the tenant should give the landlord their forwarding address. Without knowing where to send the security deposit and itemized list of deductions, the landlord will have a reasonable excuse as to why they could not comply with the 21 days for the return of the security deposit. And that 21 day rule holds steep penalties for landlords: failing to comply Civil Code Section 1950.5 can subject a landlord to penalties of up to two times the amount withheld, effectively requiring payment to the tenant of a total of three times the amount withheld, along with any fees and costs incurred for having to bring same to the Court’s attention.
Are you in a situation affecting your rights as a tenant? The Law Offices of Ian S. Topf, APC offer a free consultation on a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.
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