The advising lawyer — who earlier had announced to the room that he was willing to stay after hours to help until he felt like his brain was fried — took one look at my landlord’s pictures and said I should argue for “normal wear and tear” (more on this below). The lawyer then even helped me draft a text to my landlord to clarify that his attempts at getting my money wouldn’t be so simple.
After a back and forth with my landlord, however, he ultimately offered to pay for half of the (pricey) fixes while I paid for the other half. And while I wasn’t exactly happy with this — I didn’t think it was right or fair — the experience and the apartment had worn me down, and I wanted him out of my life.
Sadly, my experience is a common one. So, what should you do if it happens to you and a landlord attempts to keep part or all of your security deposit in a way you don’t think is justified? Below, you’ll find my conversations with experts to break down the deposit process, what to do when moving out, and how you can try to keep your money. (Basically, everything I wish I knew and did when it happened to me.)
How is a security deposit meant to work?
Along with the monthly rent money, most landlords ask a potential tenant to submit a one-time security deposit before moving in.
This is a certain amount of money the tenant can get back after moving out. However, the landlord can also dip into it if the tenant doesn’t pay rent for a month or there are damages to the unit after the tenant leaves. Remember, there is no such thing as a nonrefundable security deposit, which means there should always be a chance you will get this money back.
Security deposits in California used to be much more expensive — up to three months of rent for furnished apartments. However, as of July, all security deposits in the state must just cost one month’s worth of rent. The exception to this is smaller landlords, who have less property to lease and who can still ask you for two months’ rent as a deposit.
Amid the housing affordability crisis in the Bay Area, almost half of Californians are renting. The average cost of renting in the San Francisco area is $3,100 per month while, for the average American resident, it’s $1,700, according to CoStar Group data. In addition to the cost of rent, security deposits can be another of the many barriers people face when trying to find somewhere to live — especially when the security deposit costs more than the rent advertised.
There can be consequences for landlords who withhold security deposits. In April, after being sued by the state’s Attorney General, Arnel Management Co. in Southern California agreed to pay $1.15 million to its renters and their advocates for illegally withholding their security deposits for unnecessary cleaning and repairs.
What should I do before I move in to increase my chances of keeping my security deposit?
Dan Beaver, who leads the Tenants Advocacy Project at the Justice and Diversity Center of the Bar Association of San Francisco, said tenants should familiarize themselves with their rights by reading California’s statute on renting units and printing out a checklist (like this one from apartments.com) that walks tenants through each stage of the move-in and move-out process.
Tenants also should take pictures of everything when they move in, including walls, stoves, floors and more. These pictures, Beaver said, will be your best evidence should the landlord retain too much of the deposit and you have to go to small claims court (more on this below.)
“One thing I would tell tenants is to be proactive during their tenancy,” Beaver said. “A lot of tenants just find that it’s not worth the trouble, and then [they don’t] complain to the landlord about a problem at the unit.” And if a tenant doesn’t complain, it’s “going to make it harder for them to contest a withholding of a security deposit later,” he said.
Beaver said tenants should keep up communications with their landlords about the unit through text or email and keep the tone polite — but firm.
Former Bay Area property manager Lian Ng also emphasized the importance of the conditions checklist when you move in. She said she’s “seen people get charged $3,000, $4,000 to repaint because there were stains on the wall or cracks that were preexisting, only because they didn’t do their condition checklist.”
“Be very detailed because if you are, you’ll get your whole deposit back,” she said. In particular, “Make sure you’re notating the carpet because that’s probably the most expensive thing you pay for when you’re moving out of the apartment.”
What should I do right before moving out?
After telling the landlord you wish to move out in 30 days, you can ask for them to do a walk-through of the unit. It’s something a lot of tenants don’t do, Beaver said, but it’s important because this is the time to ask questions about what the landlord might deduct. Tenants can then even try to make those repairs themselves.
Landlords are supposed to detail their notes in a checklist and hand them to the tenant when the tenant is still living in the unit.
“It can get a little weird because sometimes the landlord doesn’t like those repairs, or the landlord doesn’t want the tenant to make those repairs, but the tenant does have that right,” Beaver said.
After the tenant moves out, the landlord will still likely do another walk-through.
What should I do after I move out?
How long does a landlord have to return your deposit?” The short answer is: three weeks.
The landlord has 21 days after the move-out to make an accounting of the unit, including creating an itemized list of what needs to be repaired or deducted from the security deposit. This list should include the specific items the landlord actually has to buy to make these repairs, along with good faith estimates.
A landlord cannot just decide “‘I’m withholding $1,000 because the place was a mess,’ Beaver said. “They can’t do that.”
“At that point, the tenant should contest anything that the tenant believes was improperly deducted and send a letter or text or email back to the landlord disputing those charges,” Beaver said. “In a perfect world, they work it out.”
The big thing here: Tenants can argue for normal wear and tear — which the landlord cannot deduct for. “Normal wear and tear” includes things like faded paint, carpets worn down in places with a lot of walking, like an entranceway, and minor scratches on floors and walls. It wouldn’t include something like a floor stain caused by a pet.
“If the landlord does not provide that itemized list within 21 days, it subjects them to potential treble damages in small claims court for a bad faith retention of the deposit or a bad faith failure to provide the accounting within 21 days,” he said.
But keep in mind — the 21 days is a landlord’s deadline, not a tenant’s deadline. As the tenant, you can still challenge your old landlord up to two years after moving out.
This means you can change their mind about how you want to push back on a landlord, even months later.
“You could write to a landlord and say, ‘Hey, I contest these items, or you did not give me sufficient documentation for the things that you claimed on your deposit accounting. Please provide me with those, or I will take you to court,’” Beaver said.
“People have different reactions when you threaten to report them to authority. Some people don’t react well, but others just say, ‘Hey, I don’t want to get in trouble,’ and they do the right thing.”
My landlord wants to keep my security deposit. What should I do?
If you feel like the situation with your landlord is not improving, go to a tenant advocacy group in your city to get help navigating it. Resources include:
After my visit to the San Francisco Tenants Union, I would recommend bringing a notepad and paper to take down any suggestions the legal expert has. I noticed a lot of tenants recording their meeting with the lawyer, with plans to transcribe it late and have the lawyer’s exact words on hand.
I’d also say to have a fully charged phone or a book with you to pass the time. After filling out the paperwork, I waited for the long line of people ahead of me.
However, there is a chance that a small claims court might be your last resort.
“It’s not fun,” Beaver said. “It doesn’t happen immediately. It can be hard to collect if the tenant does win, but it is really the only remedy that the tenant has if the landlord doesn’t act in good faith and comply with the law.”
Lawyers are not allowed to represent clients in small claims court, which means you’d be representing yourself, as would your landlord — something Beaver acknowledges can be intimidating for tenants. He recommended bringing a friend or someone to support you during the hearing so they could remind you of certain parts of your case if you forget anything under pressure.
Small claims courts are also not presided over by full-time judges. They are run by people called Judge Pro Tems — usually attorneys like Beaver — and they can hear around 10 to 30 cases in a shift.
Beaver emphasized that tenants should expect a crowded room — and very little time to present their case. So, tenants should come organized and prepared to be as concise as possible.
“The biggest mistake I see people making in small claims court is that they want to tell the entire story,” he said, adding that tenants should just aim to describe what the landlord did and why they are wrong. “Your goal is to get in and out in probably five minutes or less, if possible.”
The small claims court process could take longer if the judge has questions or wants to look at any photos, emails or texts you have. However, judges will usually require that the landlord and the tenant talk it out in the courtroom’s hallway before the hearing to try to settle the case.
