At the beginning of the tenancy, the landlord can, and most likely will, require you to pay a security deposit.
Under California law, a rental agreement cannot say that a security deposit is nonrefundable. This means that when the tenancy ends, the landlord must return to you any payment that is a security deposit, unless the landlord uses the deposit for one of the following reasons:
- You owe rent.
- You leave the rental unit less clean than when you moved in.
- You damaged the rental beyond normal wear and tear.
- You have made alterations and did not return the unit to it's original condition.
- You fail to restore personal property (such as keys or furniture), other than because of normal wear and tear.
Getting Your Security Deposit Back
Under California law, your landlord has 21 days from the date that you moved out to:
- Send you a full refund of your security deposit, or
- Mail or personally deliver to you an itemized statement that lists the amounts of any deductions from your security deposit and the reasons for the deductions, together with a refund of any amounts not deducted.
In the instance where two or more roommates have rented under the same lease, the landlord is not obligated to refund your security deposit until all the original tenants under the lease have moved out.
In cases like this, talk with your landlord to see if you can come to an agreement to return your presumed share of the security deposit. If the landlord does not wish to do so, you will need to work out an arrangement with the original tenants to get your share of the security deposit back to you once they leave.
What if it’s been 21 days and my security deposit has not been returned?
If your landlord does not return your security deposit as required by law in 21 days or makes improper deductions from it, you should:
- First, give written or oral notice to your landlord requesting payment of the security deposit to the amount to which you believe you are entitled to. If you do inform your landlord orally, make sure to write notes of what was discussed in the conversation.
- You can also suggest that the dispute be mediated before taking the matter to small claims court. If the landlord presents good reasons for keeping some or all of your deposit for a purpose previously listed, it is probably wise to enter into a reasonable compromise with the landlord to get some amount of the security deposit refunded.
- If mediation doesn’t work the other option is to sue the landlord or the building owner in small claims court or Superior Court for return of your security deposit. Keep in mind that you will have to file that suit in a court with jurisdiction over either the location of the property or the location where the rental agreement was signed or otherwise entered into. This can present problems if you are moving away from the area where the property is located, especially if you are moving out of state.
- Each party then will have to argue in court why they are entitled to the deposit or, in the landlord’s case, damages or unpaid rent that exceeds the security deposit. While suing in small claims court note that:
- If you prove to the court that the landlord acted in “bad faith” in refusing to return your security deposit, the court can order the landlord to pay you the amount of the improperly withheld deposit, plus up to twice the amount of the security deposit as a “bad faith” penalty.
- If your claim is for a little more than $10,000, you can waive (give up) the extra amount and still use the small claims court. For amounts greater than $10,000, you must file in Superior Court, and you ordinarily will need a lawyer to effectively pursue your case.
For more information regarding small claims court go to the “Small Claims Court” information section on the law clinic’s “Tips and Information” page.
Preventing Issues That Stop You from Getting Your Security Deposit Refunded
To prevent issues in getting your security deposit refunded on time, here are some preventative measures you can take before you move out:
- Have a record of your security deposit payment.
Ensure that the amount of the security deposit is printed on the lease before you sign. If you pay with a check note that it is for a security deposit on the check. No matter how you pay try to obtain a receipt from the landlord, this is especially true if paying with cash.
- Fill out a move-in checklist:
In the “Lease and Rental Agreement” section we go over the importance of a move-in checklist. Doing a joint walkthrough with your landlord, filling out a move-in checklist, and taking “before” photos of damages to document the damages present before your tenancy and that they won’t be attributed to you. (Here is a copy of the move-in checklist (PDF) that can also be found on the Forms Page on the law clinic website)
- Rental unit cleaning.
Before moving out ensure you clean the premises diligently to return the property to a condition as close as possible to the condition it was in when you moved in. Normal or expected wear in tear is expected but anything outside of that might be deducted from your security deposit.
- Perform move-out inspection and checklist with the landlord.
For the initial move-out inspection, you and the landlord should agree on a mutually convenient date and time for the inspection during the last two weeks before the end of the tenancy or the term. It is recommended that tenants not wait until the last day of the tenancy to schedule their inspections because tenants may find themselves without time to repair or clean items noted during the inspection.
Although landlords are not required by law to permit tenants to attend the final inspection, if possible, it is recommended that tenants try to be present when the landlord conducts his/her final inspection. Before moving out, tenants are encouraged to clean the rental unit and repair damaged or broken items to improve the likelihood of receiving a full refund of their security deposit.
If permitted to attend the final inspection bring your move-in checklist as well as any “before” photos, you may have taken during your initial inspection to have documentation of any pre-existing deficiencies or lack of cleanliness.
Both you and the landlord or agent should sign and date the inventory checklist after each inspection. (The landlord or agent should sign the checklist even if you’re not present.) Be sure to get a copy of the signed form after each inspection.
Security Deposit Increase
Whether the landlord can increase the amount of the security deposit after you move in depends on what the rental agreement says, how much of a security deposit you have paid already, what the reason for the increase is, and whether local law permits such an increase.
If you have a rental agreement, the security deposit cannot be increased unless increases are permitted by the terms of the rental agreement. However, if the amount that you already paid as a security deposit equals two times the current monthly rent for an unfurnished unit or three times the current monthly rent for a furnished unit, then your landlord cannot increase the security deposit, no matter what the rental agreement says.
Note: This is information accessible to the public and does not constitute legal advice nor counsel. For more information or to discuss this topic in depth, schedule a meeting with the Law Clinic.
