As such, I’ll discuss the specifics of California law, which should help you know what to look for within the state law that applies to you. California Civil Code 1950.5 governs security deposits. In its most basic terms, CC 1950.5 states that the security deposit may be kept only for damage, unpaid rent and cleaning, as well as replacement value of furniture or other items which belonged to the landlord or building. The landlord cannot charge for painting the walls, for example (painted walls is not “damage”), but could charge for repairing a large hole in the wall. And the landlord cannot charge for normal wear and tear. The key here is “damage.” If the tenant didn’t actually damage anything, and cleaned the place before leaving, the tenant should get back most, if not all, of the security deposit.
Typically, the landlord must provide you with either your deposit money or a list of charges (reasons) why he kept some or all of your deposit money within 14 to 30 days after you vacate, depending upon the state in which you live. In California, the landlord has 21 days to either give back the deposit, or to provide an itemized list of charges (or a combination of both). If you haven’t received a list or your deposit within the allotted time (based on your state law), then you have grounds to file a lawsuit (small claims or otherwise) to force your landlord to return your deposit. Depending upon the laws of your state, and established case law, it’s even possible that if this provision of the law is violated, your landlord automatically forfeits his right to legally keep any of your deposit, and may be required by law to return it to you in full.
There are two key items a judge considers to determine whether or not you should get your security deposit returned: 1) If you can prove that your landlord violated your rights as a tenant as defined by your state law, and 2) if you have evidence which clearly shows that the landlord’s claims are fabricated. ALWAYS argue law first, claims second. Photographic evidence is best, and witnesses and/or documents are next best. If you don’t have any pictures, then have witnesses either testify on your behalf, or have them write a statement of fact regarding the items in question. Even if you have photographic evidence, it’s still a good idea to have witnesses testify on your behalf. I strongly suggest that you ask your witnesses to write a statement of fact for your presentation folder (discussed in a moment), just in case they can’t testify as planned.
If you live in California, one of your most important rights, as defined by CC 1950.5, is your right to have the landlord do a “walk through” with you prior to vacating the unit. The walk through is mandated, if you request one (preferably in writing), and the purpose is for the landlord to give you an itemized list of proposed “damages” which you can then repair yourself or hire someone else to repair before you move, or let the landlord repair after you move. Ask the landlord to give you his estimate of each repair on that list.
Asking your landlord, in writing, for a walk through prior to moving out is extremely important, even if the law in your state doesn’t provide for such a requirement. In California, if the landlord refuses (or avoids) a walk through when requested (for any reason), the landlord has not complied with the law, and the judge may order the landlord to return your entire security deposit. If you request a walk through and your landlord refuses, then immediately bring this to the judge’s attention and tell the judge that you would have fixed any problems prior to moving out, but since you didn’t know about them and therefore had no control over the problems, you request that the landlord be required to return your deposit in full.
One of the most infuriating parts of California Civil Code 1950.5 is that there is no punishment for landlords who refuse to obey the law. For example, CC 1950.5 says that if the tenant requests a walk through prior to vacating, the landlord shall give the walk through; but the law does not say what happens to the landlord if he refuses to obey the law. In my opinion, and the opinion of many attorneys I talked with, the failure to include a punishment for violating the law is the number one reason why California landlords get away with stealing their tenants’ money. Since landlords know they can’t be forced to obey the landlord tenant law, and since there is no punishment for refusing to obey the law, they violate tenants’ rights all the time and steal money. It’s kind of like making it illegal to kill people, but never arresting those who do because there is no punishment stipulated. Pretty stupid, huh?
Nevertheless, judges do make decisions based on law, so it’s important to share with the judge which of your rights as a tenant were violated by your landlord. We made it very easy for the judge to understand how Mr. Peterson violated Marilyn’s rights as a tenant: I copied the entire law (civil codes 1950.5, 1951.2 and 1953) into a Microsoft Word document, and then “inserted” my comments at every point in the law where Mr. Peterson violated Marilyn’s rights. When you read the text in our presentation folder (Part 3), I’m sure it will give you plenty of ideas as to how to present your situation to the judge.
If you don’t live in California, you can use the Internet-based search engine Google to find the landlord tenant law of your state. Use the “advanced” feature of the search engine, type in “landlord tenant law” in the “exact phrase” section and type the name of your state in the “all of the words” section. You will have plenty of links to choose from, and I suggest you scan several sites to get an overview of how the law in your state applies to you. One helpful Web site, The Landlord Protection Agency (www.thelpa.com/lpa/lllaw.html) has links to every state’s landlord tenant laws.
When you read through your state’s landlord tenant laws, you will find that there may be quite a number of stipulations mandated for a landlord. Find the ones that your landlord violated and bring each one to the judge’s attention. I suggest doing it the way we did (as mentioned earlier, see our presentation folder for specifics). For example, even if a tenant didn’t ask for a walk through, California Civil Code 1950.5 states the landlord is required to inform the tenant of his right to ask for a walk through. If the landlord didn’t tell the tenant about this right, the tenant would bring this to the judge’s attention. And so on.
You want to argue the law first because that’s how our legal system works we have laws designed to protect our rights. However, when you get to small claims court, what will probably happen is the judge will ask the plaintiff to share his side, and then it will be the defendant’s turn. Whether you are the plaintiff or defendant, it’s important to argue the law first, and the landlord’s claims second. Most tenants begin by arguing the merits of the landlord’s claims. Don’t begin that way! Instead, just jump right into explaining how the landlord violated your rights as a tenant by citing the landlord tenant laws that your landlord refused to obey. Then present your side as to how the landlord fabricated claims to steal your deposit money (through showing pictures, referencing the signed statements in your presentation folder, calling witnesses to testify, etc.).
As I mentioned, if the landlord refuses to follow the law there are no penalties listed in California civil code 1950.5. There may not be any in your state as well. Therefore, it is up to you to request that the judge award you your entire deposit since the landlord didn’t follow the law.
Typically, if the landlord is suing you in small claims court and you lose, you can appeal the judgment. If you appeal, then you go to superior court to plead your case, and you’ll require an attorney. Make sure your attorney argues that since your landlord violated your rights as a tenant, you ought to get your deposit back. If you are in California, have the attorney read attorney Ken Carlson’s PDF Security Deposit Recovery Kit, where Mr. Carlson provides detail regarding how to argue this point.
If you are fortunate enough to read this book before you move out, then you get to take pictures of your apartment, which will refute any “damages” claims by the landlord. Use a digital camera if possible, because digital cameras adjust to the various color temperatures of the lighting within your apartment. Open all the blinds, turn on all the lights and shoot during daylight hours. If you aim the camera at a window, you need to adjust the exposure for inside the room; otherwise the camera will automatically shoot for the outdoors, making the interior dark. If you can’t manually override this feature, avoid shooting into the windows, or use a flash.
Take pictures of every room, with a minimum of six per room. Shoot each wall, the floor and the ceiling. If there are any special features, get close-ups. Walk in as opposed to “zooming in,” because you’ll get a sharper picture. When in the kitchen and bathroom, take detailed pictures of everything: stove, counter, sink, toilet, cupboards, etc. I shot 70 pictures, and used 60 of them. Don’t skimp on film or taking pictures this is your only solid proof! (By the way, 12 years ago I sued a landlord in small claims court, and he settled out of court because he knew I shot a lot of photos. Film is cheap; losing your deposit isn’t.)
If you moved out and didn’t take any pictures, then get your friends who know the defect pre-existed your tenancy to write a statement of fact to the effect that the landlord’s claims of damages are false. For example, if the landlord claims the kitchen counter top was chipped by you (and you or your guests didn’t do it), and he claims you owe him money for it, have a friend, or even a former roommate, write a letter stating that the chip was there when you moved into the unit (or was never there, as the case may be). You will find we have such statements in the Exhibits section of our presentation folder. Check them out to get the idea.
As a review, remember you first want to present to the judge how the landlord violated your rights as a tenant, and then secondly you want to discuss the “damage” claims. The main purpose of this book is to show you how to present the information to a judge so that he will quickly figure out that the landlord violated your rights as a tenant and fabricated claims against you to steal your money. A clear, organized case will result in your victory.