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Did the landlord breach the contract, and am I entitled to my full security deposit?

Long Beach, CA |

I signed a month to month lease with a clause stating I would lose my deposit if I for any reason decide not to move in . The deposit was a security deposit as specified in the lease , not a holding deposit . 3 days before move in , the sub lessor informs me a situation requiring he moving out at the end of the next month , and offers me the option of taking over the current lease or have my deposit returned . The next day he sends me a text insisting I move in and consider leasing the place during my stay . I replied the same day saying yea thats what I was thinking . After negotiating with the landlord that day , I decided not to take over the new lease . The next day I informed the sub lessor of the situation , and accepted the offer to have my deposit returned . I only received part of the deposit .

Attorney Answers 3

Posted

Under Civil Code 1950.5, security deposits can only be used to pay unpaid rent, repair damage beyond normal wear and tear, clean the premises and remedy future rent defaults, so that any remaining balance must be refunded.

There is no such thing as a "holding deposit." Civil Code 1950.5(c) states:

A landlord may not demand or receive security, however denominated, in an amount or value in excess of an amount equal to two months' rent, in the case of unfurnished residential property,
and an amount equal to three months' rent, in the case of furnished residential property, in addition to any rent for the first month paid on or before initial occupancy.

Finally, the landlord must provide the tenant with entitled to an itemized statement of the deductions from the security deposit within 21 days. Civil Code 1950.5(g). If the landlord fails to do so, the landlord must refund the full deposit, but can sue for damages. Granberry v. Islay Investments, 9 Cal.4th 738, 745 (1995).

You should consider making a written demand on the landlord for failure to return your security deposit. If the landlord fails to do so, you should consider making a claim for bad faith retention of your security deposit, which allows for an award of treble damages. Civil Code 1950.5(l).

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Asker

Posted

Thank you for your comment, I also reviewed Civil Code 1950.5. I guess the main issue I have is if the landlord breached the lease by informing me of a new situation, and giving me 2 options. If the landlord found a new tenant to rent out the unit a month after my proposed move in date, wouldn't he be entitled to collect the "unpaid rent" since I did not move in? If the the lease agreement states the terms of the contract shall commence from March 1, and I canceled my move in before this date, was the contract never in effect?

Brad S Kane

Brad S Kane

Posted

Your facts are not very clear. Who did you sign the lease with and give the deposit to? You state the sub lessor agreed to give you your deposit back, so who is keeping it? Finally, if the contract was with the landlord and the landlord substantially changed the terms of the lease, then you should be entitled to your deposit back.

Asker

Posted

Sorry about that, I signed the lease with the sub lessor and the sub lessor is in possession of my deposit. Before signing the lease, the sub lessor assured me he had no plans of moving out anytime soon. Had I known he would move out so quickly, I would have never signed the lease. The sub lessor had an emergency situation come up and stated I either take over the lease or have my deposit returned. I'm not too familiar with the Statutes of Fraud, but I believe I may have accepted the sublessors offer of moving in (by saying yea I thats what I was thinking (see above)), and then deciding whether or not I will take over the lease. By accepting that offer, did I nullify his previous offer of returning my deposit or taking over the lease?

Brad S Kane

Brad S Kane

Posted

If the sub lessor gave you two options and offered to give you back the deposit if you were not moving in, you should be entitled to your deposit back.

Posted

He must return your entire deposit because that was your agreement. He breached your sublease by not having the place available in the way he promised. He offered to terminate the lease in exchange for the return of your deposit. He now must make good on his promise.

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Posted

Your facts are a bit nebulous, but based upon what you posted, you ought to be entitled to a full refund of your deposit if the sublessor was unable to perform.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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Posted

1. Signed a lease agreement and sent it to the sub lessor with a deposit certified mail. 2. 3 days before move in, he informed me of a situation requiring him to move out by the end of next month, which is the end of the first month of my lease. 3. He gave me 2 options, take over the lease or have my deposit returned. 4. I let the sub lessor know I was interested in the lease, but it would depend on the contract. I negotiated with the landlord regarding the lease and we were going to meet on my move in day just to discuss terms of a possible contract. 5. After the sub lessor informed me he needed to know if I was going to take over the lease 2 days before my move in, I emailed him informing him I would not be taking over the lease and would like my deposit returned. 6. The sub lessor returned half of my deposit, and claimed since he was not able to find a roommate until the next month, he will use half of my deposit to help pay for rent.

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