Three Essentials Every Tenant Must Know Before Moving Out
With moving season upon us, there are some essential legalities that every tenant should be aware of when moving out. This article will provide information on tenant’s rights regarding: security deposit, inspections, security deposit itemization, and security deposit check deadline.
1. Security DepositBefore we get into security deposit itemization and inspection rights, let*s quickly differentiate a security deposit vs. a rent payment. and how they should be handled by the landlord. Rent payments belong to the landlord. On the other hand, a security deposit is the tenant*s property. Any monies paid as *security* must be held by the landlord for the tenant. Civil Code * 1950.5(d). It is a violation of the civil code for a landlord to use the security deposit as they please or to retain the deposits when tenants vacate.
So, you are probably wondering if the security deposit is the tenant*s property, how can the landlord use the security deposit? According to Civil Code * 1950.5(e),(b)(1), a landlord may withhold part or all of the security deposit to cure a default in rent. This means, if you did not make all your rent payments in full during your lease, the landlord may keep a portion and/or all your security deposit to make up for the missed rent.
Another avenue landlords can claim to withhold some and/or all of the deposit is to repair damages to the premises. This is one of the biggest issues when a tenant is vacating. What does *damage* mean? Well, damage in this sense means anything beyond ordinary wear and tear that can be attributed to the tenants or any of his/her guests. For example, the landlord may not withhold a security deposit for a window that was broken before moving in that is still broken upon move out. Civil Code * 1950.5(e),(b)(2).
Other than the *damage* issue there is always a dispute if cleaning charges can be deducted from a security deposit. According to Civil Code * 1950.5(e),(b)(3), a landlord has a right to deduct money from the deposit to return the unit to the same level of cleanliness it was at the inception of the tenancy. This is obviously an objective standard, meaning that if the landlord says the unit is not as clean as when you moved out as when you moved in, they can deduct money from the deposit. It is a good rule of thumb to know this going into a lease, and calculate a *cleaning fee* being deducted from your deposit.
2. Inspection and ItemizationAccording to state law, a landlord must provide a tenant with written notice of his/her rights to request an initial inspection and to be present during the inspection under Civil Code * 1950.5(f)(1). It must be noted, this does not apply when the tenancy is terminated pursuant to a three-day notice for nonpayment of rent, or breach of other lease terms. The initial inspection*s purpose is to afford a tenant the opportunity to *remedy identified deficiencies, in a manner consistent with the rights and obligations of the parties under the rental agreement, in order to avoid deductions from the security.* Civil Code * 1950.5(f)(1),(3).
If the tenant requests an initial inspection, then it must take place no earlier than two weeks before the termination or end of the lease, and before the final inspection. The landlord and tenant must attempt to schedule the initial inspection at a *mutually acceptable date and time.* Civil Code * 1950.5(f)(1). Usually, the landlord must give 48 hours written notice to the tenant of the date and time of the initial inspection. The 48-hour notice can be waived by the tenant and landlord by both parties signing a written waiver. Civil Code * 1950(f)(1).
After the initial inspection takes place, and based on the landlord*s finding, the landlord must provide the tenant with an itemized statement specifying the repairs and/or cleaning that is proposed to be the basis of any deduction. Civil Code 1950.5(b)(1)-(4). The itemized statement must also include the text from Civil Code 1950.5(b)(1)-(4). If the tenant is present during the initial inspection then the itemization statement must be given directly to the tenant. If the tenant is not present, then it must be left in the unit when the landlord has completed the inspection.
Following the initial inspection and issuance of the itemization statement, the tenant *shall have the opportunity* to fix the identified deficiencies *in a manner consistent with the rights and obligations of the parties under the rental agreement.* Civil Code * 1950.5(f)(3). The tenant must be afforded this opportunity in order to avoid deductions from the security deposit.
3. Security Deposit Itemization and Service of ItemizationSo, the initial inspection took place, you vacated the property, and you are awaiting your security deposit refund. Did you know that there are legal standards that the landlord must abide by when issuing the check and final itemization?
According to the Cal.Civ.*1950.5, no later than 21 calendar days after a tenant*s vacancy the landlord must do the following:
1. Provide the tenant, by personal delivery or postage prepaid first-class mail, with a copy of an itemized statement indicating the basis for and amount of any security deposit received and the disposition of that security; and
2. Return to the tenant *any remaining portion of the security*, Cal.Civ.C. * 1950.5(g)(1).
If, after receiving the final itemization and your refund, you believe the landlord deducted an unreasonable amount of money, then you do have recourse. According to Civil Code * 1950.5(j), the landlord has the burden to prove that the deductions are reasonable. Additionally, along with the itemization statement the landlord must include copies of documents showing charges incurred and deducted by the landlord to repair and/or clean. Civil Code * 1950.5(g)(2). Please note, that there are different standards for different types of work, please contact our office if you would like more information.
4. ConclusionPlease remember that you as a tenant have a number of rights and landlords have duties they must obey. You will notice that this article does not address the possible consequences if/when a landlord violates the civil code. This will be a topic for a different article.
Moving is stressful enough, the last thing you need to worry about is being wronged by a landlord. Let us handle the paperwork and you can worry if the couch and area rug look good together.
All information provided in this article is for educational purposes only, and does not constitute legal advice. Each situation is dependent on the specific facts and must be evaluated on a case-by-case basis.