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Getting your security deposit back

I’m moving out of my apartment and I think my landlord is going to try to keep all of my security deposit. What exactly can she use the security deposit for?

Landlords and tenants often ask what can be deducted from the security deposit. The answer, unfortunately, is rather murky.

The law is ambiguous about what specific losses, expenses and costs the landlord may use the security deposit for after termination of a residential lease. The landlord may use it for unpaid rent, for cleaning the premises, to repair tenant-caused damages (other than normal wear and tear) and, if the lease provides for it, the cost of restoring or replacing furnishings other than because of ordinary wear and tear.

The problem is, what is “normal” wear and tear? Landlords argue that there are other items that may be taken out of the security deposit, including any late charges, insufficient check charges and attorneys fees.

Despite the ambiguity, a deposit may never be used for repairing defects that existed prior to the tenancy, or problems that were caused by ordinary wear and tear. Security deposits may never be “nonrefundable.”

Within 21 days or less after move out, a landlord must either send a full refund of the security deposit, or provide an itemized statement showing each deduction, including amounts and grounds for the deduction, along with a refund of the remainder. Under no circumstances may a landlord simply tell you that they used up all of the security deposit.

Statements must include receipts justifying deductions and charges. If the landlord performed the work, the statement must describe the work, how many hours were spent, and the landlord’s reasonable hourly rate. If someone else did the work, the statement must include an invoice or receipt, with the contractor’s contact information.

If the repairs cannot be made within the 21-day period, the landlord can include a good faith estimate of the charges with the itemized statement. Within two weeks of making the repairs, the landlord must send you a corrected itemized statement and any refund.

If your landlord has not given you an itemized statement, or you believe that the deductions are improper, ask immediately and in writing for a refund of the amount you believe you are owed.

If you still can’t get your deposit back, try contacting Fair Housing Napa Valley, or the Napa Superior Court Self-Help Center (temporarily located in the criminal courthouse due to earthquake damage to the historic courthouse). A last option may be to sue the landlord in small claims court.

Mary Luros is a business law attorney with Hudson & Luros LLP in Napa, and can be reached at mary@hudsonluros.com. The information provided here is not legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information.

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