Security Deposit Use Defined by Law, But It's Up to Interpretation

Robert S. Griswold | Steven R. Kellman | Ted Smith
19-August-2001 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (10 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

QUESTION: My lease ends next week, and our landlord gave us a written statement of what cleaning needs to be done before we vacate, including prices for each item that is not properly completed. This form indicates that any damages, such as counter tops and holes in the walls, will be deducted from our security deposit. They also indicate that we will be charged for any money over and above our deposit. Is that legal? I don't see how they charge us over and above our security deposit. Also, are nails pulled from the walls that are used to hang pictures considered "holes in the wall?"

ANSWER: Griswold: Security deposits are covered by California Civil Code Section 1950.5. It spells out exactly how the deposit must be handled. In general terms, landlords are basically able to charge for three types of things: unpaid rent; cleaning, if necessary; and damages beyond ordinary wear and tear. Unfortunately, the definition of items cleaning and wear and tear especially are in the eye of the beholder.

I cannot tell you whether your particular landlord will consider small nail holes to be damage. I recommend having a pre move-out walkthrough with your landlord to discuss any and all potential items. Typically a reasonable number of small nail holes would be considered normal wear and tear while large holes or dozens of holes would be excessive.

Your landlord does have the legal right to hold you responsible for any amount regardless of your security deposit. As far as collecting the amount, typically landlords use the small claims court. The landlord must provide you with an accounting and/or a return of any balance of your deposit within 21 days of your vacating the unit.

Coverage of legal fees

Will the liability coverage of a landlord's homeowner's insurance typically cover the landlord's legal fees in the event a landlord/ tenant dispute is settled through mediation? In court?

Smith: Most landlords' liability policies are limited to perils and misfortunes based on tortious acts only: fire, flood, negligence, property damage, and personal injury. Generally speaking, they do not extend to contract matters. A provision for attorney's fees is usually limited to contract actions that contain an attorney's fees clause. In these types of cases, the prevailing party may, within the court's discretion, be entitled to attorney's fees.

Giving notice

I have been told by my landlord that my 30-day notice must commence on my rental payment due date. I am not aware of such a rule. Please inform me of the regulation, if any.

Kellman: A 30-day notice given by the landlord to either terminate the tenancy or to change the terms of a tenancy may be given at any time during the month and not necessarily the rental due date. This rule also applies to tenants who wish to give their own 30-day notice of vacating. Remember, these 30-day notice rules apply in month-to- month tenancies. They do not apply in tenancies for longer terms (i.e. six months, one year etc.) unless they are specifically allowed by the lease.

Generic paperwork

Can you tell me where I would be able to obtain a generic rental agreement if I want to rent a room in my home? Is there a location where you can find blank real estate forms that you can customize for your own needs? I want to be sure that I am legally covered as necessary.

Smith: Generic rental agreements abound and can be obtained from a variety of good sources. The San Diego County Apartment Association and San Diego Association of Realtors have standard month-to-month rental agreements and leases. However, you have a special situation here. There is a law in California that states that an owner of a home who rents a single room within that home to a boarder may, after a proper 30-day notice to vacate has expired, seek to have the boarder removed by law enforcement without resorting to the formal unlawful detainer lawsuit. Readers need to bear in mind that this exception is for a single renter in one room within a property only. No other landlord/tenant relationship allows for this special procedure.

IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

Back to 2001 Rental Roundtable Index

Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws. As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply. Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

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Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
Email: rgriswold.ret@retodayradio.com