How to Do All You Can to Get Your Security Deposit Back

08-Jun-1997 Sunday
(Page H-10 )

This column on issues confronting renters and landlords is written by Certified Property Manager Robert Griswold, host of KSDO Radio's "Real Estate Management Today!" (Saturdays, 2-4 p.m.) and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

Q: I paid an $800 security deposit and my monthly rent is $600. I will be vacating my apartment soon and have become aware that the owners have a poor reputation for the proper handling of security deposits. They have several unpaid court judgments from vendors and suppliers, plus unpaid judgments owed to tenants for bad-faith retention of security deposits. Obviously, I am concerned that I will not get my security deposit back.

What can I do?

A: Griswold: This is a great question that all renters should consider prior to moving out regardless of the reputation of their owner.

I would suggest that you contact the owners in writing to express your concerns. Ask them to provide in writing the requirements you must meet to have your security deposit returned. Of course, these requirements must conform with California Civil Code 1950.5, which holds you as tenant responsible for repairing damage beyond ordinary wear and tear, plus any cleaning that is necessary. Also, you must have paid your rent and any other legally allowed charges in full.

You should also request in writing a final walk-through of the unit upon move-out and have the owner give you an opportunity to correct any potential deductions. While not legally required, a walk-through is done by most reputable owners either routinely or on request.

As a precaution, I would also suggest you take pictures of the premises and have witnesses as to its condition. Hopefully, you have a written statement as to the condition of the rental unit upon your move-in. This can be important to rebut any claims by the owner for damage that occurred prior to your occupancy. Good luck!

Q: I have been living in my apartment for six years and the inside needs painting but the landlord says he is not legally required to do so. Can I withhold the rent to try to force him to paint?

A: Smith: A paint job is cosmetic only -- it does not relate to the bare living conditions, such as electric, water, and plumbing required by the warranty of habitability.

Your landlord is not required to paint, so don't try to withhold rent to force him to do so. Under California law, he is responsible for maintaining the premises in a habitable condition.

If he refuses to paint, you are free to move elsewhere upon proper 30-day notice.

But, if you'd like to stay, try to work things out. You could assume all or a portion of the labor and material costs for the repaint. If the landlord approves, you can absorb the costs and remain in possession of the premises.

Kellman: Don't go out and buy that paintbrush quite yet -- in certain circumstances painting may indeed be required of the landlord.

While Mr. Smith is essentially correct, he fails to mention situations where painting is needed to correct an unhealthy condition.

This can occur when a mold or mildew problem can be alleviated by painting. Certain older "popcorn" type ceilings contain asbestos or other harmful chemicals that need routine painting to seal the surface. And older units may have lead-based paint that should be removed and replaced by safer latex-based paint.

If, however, the painting is for cosmetic purposes only, it will not be considered a habitability situation and withholding of rent is not an option.

Q: I am an on-site manager who leased an apartment to four students. The lease has expired and they are now there on a month-to-month basis. When they moved in, I received a security deposit of $500 without any breakdown of the amount each student paid.

In the last few months, two of the students have moved out and two new students have moved in.

The new students formally applied, were approved and signed the original rental agreement. There was no change made in the status of the security deposit. The owner told me to handle the situation this way, but I am concerned about the status of the security deposit if the remaining two original tenants vacate and demand their deposit. I will then have an apartment without a security deposit.

How should I handle this now and what should I do in the future?

A: Smith: When multiple tenants sign a lease, the landlord looks at the group of them as a sort of "package." It is not necessary to determine the actual source of the security deposit because legally, it came from all four students as tenants of record on the lease.

The general rule is that the security deposit "follows" the apartment. Since two of the four are continuing on, there is no duty to return the security deposit to the students who have left.

Q: My neighbors upstairs are really noisy. I complained to the landlord and she said she would look into it, but the noise is still a problem. I have six months to go on my lease but want to move right away due to the noise. Can I break my lease and leave without owing any more rent?

A: Smith: This is a tough question. Taking the landlord's side, you don't appear to have a good enough case to break your lease.

The law requires that the disruption of your quiet be very substantial -- almost unbearable. If you can prove it is that bad, you may have the right to walk away from the lease with no further responsibility.

The law calls it "constructive eviction." Try to get the landlord to take action against the noisy neighbors, and agree to help him, by testifying in court if necessary, to evict them based on the disturbances.

Kellman: It depends on how noisy "really noisy" is. The law assumes a certain normal level of noise exists in all multiunit rentals. But, if the noise is excessive and it makes the unit truly unlivable, the law says that the tenant may be let out of the lease. First, you need to make a written complaint to both the landlord and the neighbor about the noise. You need to wait a reasonable amount of time to allow the parties an opportunity to correct the situation. If the noise persists, "document" the noise in case you need to prove it someday to a judge.

Regardless of how strong you feel about the noise, do not take the drastic step of moving out with an ongoing lease without getting legal advice first.

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 191, San Diego, CA, 92112. Or you may e-mail them at rgriswold@retodayradio.com

Back to 1997 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