The Berkeley Rent Board Mailbag

Security Deposit


Q:  Can I charge an extra deposit for pets? 

Generally a landlord can only establish the security deposit amount at the beginning of a tenancy, and this amount cannot be increased.  However, under Rent Board Regulation 705, a tenant and landlord may mutually agree in writing to collect an additional deposit for the acquisition of a pet if the rental agreement does not already allow for one.  Remember, however, that under state law, the overall amount of the deposit (which includes the last month's rent payment if one was collected at the inception of the tenancy) cannot exceed two month's rent.  


Q:  I rented out one of my apartments to four students two years ago. Their tenancy ended last month, and after they moved out the apartment was in pretty bad shape: The carpets were covered with stains, the stove burners were so encrusted with grime that they are not functioning correctly, and there was a large hole in one of the bedroom walls. I plan on having the damage repaired and taking any money I use out of their security deposit. How should I go about this? 

It sounds like the damage left by the tenants goes beyond the normal "wear and tear" that a landlord expects to see during the course of a two-year tenancy. For this reason, you can hold the tenants responsible for the repairs, as long as you go about it the right way: First, get the damage fixed as soon as possible, and keep all invoices and receipts for work performed. Second, return the tenants' security deposit-minus any money you used to make repairs-to them within three weeks of their move-out date. Finally, if the money you spent making repairs exceeds $125, you must include an itemized list of repairs made to the unit, along with copies of the receipts and invoices for work done.


Q: I am about to sign a lease for an apartment, but I have a question about the security deposit. The rent is $1000, and the landlord is asking for first and last month's rent and a security deposit of $1500. Do I really have to pay $3500 up front? 

California Civil Code section 1950.5 limits the amount a landlord may legally "demand or receive" as a security deposit to no more than twice the rent for an unfurnished apartment or three times the rent for a furnished one. The security deposit includes all the money collected at the beginning of the tenancy except the first month's rent; in this case, the security deposit includes the $1500 plus the $1000 that has been designated as "last month's rent." (Pet or cleaning deposits are also considered part of the security deposit). Thus, you are being asked to pay two and a half times the rent, which exceeds the lawful maximum for an unfurnished apartment.

You have a number of options in dealing with the issue at hand. Your landlord may not be aware that there is a law limiting deposits, and if you point it out to him or her, the landlord may reduce the deposit amount to a lawful level. On the other hand, he or she may be unsure and still want you to pay the original amount requested. If you believe you may risk losing the apartment altogether by not paying the extra $500, you may not want to raise the issue until after you have signed an agreement. In any case, if you do end up paying over the lawful amount, you can file a petition with our office to get it back. Please call us for advice on how to proceed in this situation.


Q: I moved out of my apartment a month ago and am having trouble getting my security deposit back. I called the landlord, and he said that since my roommate is still there, he did not have to return my deposit. Do I have to wait until my former roommate moves out before I can get my deposit back?

No. While it's true that your landlord does not have to return any of the deposit on the apartment until it is vacated, you should get your share of the deposit back from your former roommate, or from a new person taking your place, if there is one. If there is a new tenant, and s/he pays the landlord a security deposit, then you would get your share back from the landlord. If there is no new person or the new person pays your roommate, or does not pay a deposit, your only recourse is to get it from your old roommate. If s/he won't give it to you, you may need to take him/her to small claims court.


Q: I moved out of my apartment a month ago and I still have not received my security deposit from my landlord. What should I do?

State law (CA Civil Code section 1950.5) gives your landlord 21 days to provide an itemized accounting of the disposition of your security deposit and return the balance. Now that that time has elapsed, you should write to your landlord requesting the return of your deposit by a certain date. It's a good idea to give him a reasonable deadline, say a week, and then if you get no response or an unsatisfactory one, you may proceed by taking him to small claims court. Alternatively, you could file a petition with the Rent Board, but since the Board has no power to enforce a decision in your favor once you have moved out of the apartment, you might have to sue in small claims court if the landlord does not pay. You may contact Small Claims Legal Advisors at (510) 893-7160 or visit http://www.alameda.courts.ca.gov/Pages.aspx/Small-Claims for more information.


Q: I moved into a house with three other roommates two years ago. We each paid one roommate $500 for the security deposit, and he, in turn, paid the landlord $2000. Now I am moving out and I want my security deposit back, but our landlord says he doesn't have to return it until my roommates move out. Is that correct?

Yes. According to Rent Board Regulation 706, a landlord is not required to refund any portion of a security deposit until he has recovered possession of the unit, i.e., until the unit is vacant. Because there is no telling when the unit will be vacant, especially if roommates are replaced as each one moves out, you should ask for your share of the security deposit from the remaining tenants or from your replacement, if there is one.


Q: When I moved into a rental house more than 20 years ago, I paid the first and last month's rent. Of course the rent was much lower at that time. I am moving out of the house in a month, and my landlord says that I owe the difference between today's rent and the "last month's rent" I paid when I moved in. Do I have to pay this difference? He has been holding that money for 20 years. Shouldn't he have to pay me some kind of interest, and if so, how much should I get?

Your landlord is correct in asking for the difference between today's rental rate and the monthly rate in effect 20 years ago. Under California Civil Code section 1950.5(b), a security deposit is defined as "any payment, fee, deposit or charge, including but not limited to an advanced payment of the rent..." so the money paid at the beginning of the tenancy was a security deposit rather than the actual rent payment that would be due during the final month of your tenancy. Thus, you are obligated to pay your landlord the current rental rate for the last month of your tenancy, not the monthly rate you paid when you first moved in. The landlord is prohibited by Rent Board Regulations from increasing the security deposit during your tenancy.

Tenants should also be aware that a landlord is under no obligation to allow a tenant to use the deposit to cover the rent for the final month of a tenancy and can require tenants to make a final rent payment even though part of their deposit was referred to as "last month's rent" when the tenancy began. Of course, tenants can always ask the landlord to allow the deposit to be applied in that manner.


Q:  My building was completed a year ago and I moved in shortly thereafter.  I know my unit's considered a "newly constructed rental." Now my landlord wants me to sign a new lease that has several substantive changes, including a $100 rent increase, a $250 increase in the security deposit and a note telling me that he was no longer responsible for keeping security deposits separate from  general funds or for paying interest on my deposit.  Can he do all these things?

Since new construction is exempt from the rent ceiling provisions of the Ordinance, there is no limit on the amount your landlord can raise the rent when your lease expires.  New construction is not, however, exempt from the requirement that security deposits be held in interest bearing accounts and that interest on deposits be refunded in December of each year.  Furthermore, Regulation 705 prohibits a landlord from increasing a security deposit during a tenancy.  Finally, new construction is not exempt from compliance with the good cause for eviction provisions of the Ordinance.  Therefore, you cannot be evicted for refusing to sign a lease that is materially different from your current lease.


Q: I will soon move out of my apartment in Berkeley and I just talked to the manager on site about a possible time to return the key and inspect the apartment after I clean the unit and remove my belongings.  The problem is, he may not be able to do a walk through with me on the date I move out.  What can I do to make sure I get my security deposit back?

State law requires a landlord to provide an itemized accounting of the disposition of the security deposit and to refund the unused portion within 21 days of the date the tenant returns possession of the unit.  Taking pictures is a good way to protect yourself from claims that the unit needed additional cleaning.  If your landlord is unable to inspect the unit with you, you might have a friend or neighbor inspect the unit with you after it is cleaned.  If a dispute develops concerning your refund, you can file a Small Claims Court action or file a petition with the Rent Board.  (You might still have to go to Small Claims Court to enforce the Rent Board's decision.)  Your friend or neighbor will be able to testify about the condition of the unit.


Q: After I vacated my apartment, I did not receive my security deposit refund for five weeks. Since my landlord didn't return my deposit in the required 21 days, is there anything I can do to recover damages?

If the landlord returned your full deposit, there does not appear to be any ground for which you can recover damages. By refunding the deposit late, the landlord was required to return the full deposit. Moreover, if your landlord had not returned the deposit at all or had refunded only a portion of the deposit, and you were able to establish that the retention of your money was done in bad faith, the law imposes a double damages award.



Q: I am moving out of my apartment this week, and the building manager has given me an itemized list of the possible charges for cleaning the apartment, but the prices seem outrageous. Is there any way to make them prove that the services actually cost as much as they claim?

When deductions are taken from your deposit, you can always ask to see the actual receipts for the work performed. You can also get estimates from other, independent cleaning services to see if the rates they would charge are comparable to the amount deducted from your deposit. If you believe the amount deducted was excessive, you may file a petition with the Rent Board seeking a refund of the withheld security deposit. You may also file a claim in Small Claims Court.


Q: We own a unit that is not under rent control. When our tenant moves out, are we obligated to give them interest on their deposit?

If your unit is completely exempt from the Rent Ordinance, then there is no obligation to refund interest on security deposits. If the unit is partially exempt, new construction or a Section 8 contract rental for example, then you are required to refund the interest earned on security deposits on an annual basis.


Q: We are about to move from an apartment we've lived in for eight years. When we moved in, we paid a last month's rent and a security deposit. At the time, I assumed the last month's rent would be applied to our final month in the unit. Is this true? If not, can we ask our landlords to apply the amount that we deposited to the last month and simply pay the difference? Or do we have to write a check for the full month's rent and then negotiate with the landlord for the return of both the last month's rent and a security deposit?

Under California law, the security deposit on an unfurnished apartment may not exceed two month's rent. The deposit on a furnished unit may not exceed three month's rent. A security deposit is defined as "any payment, fee, deposit or charge, including but not limited to an advanced payment of the rent..." Since the money paid at the beginning of the tenancy was a security deposit rather than the actual payment of the last month's rent, the rent paid for the last month of your tenancy must equal the current rent charged, not the monthly rate you paid when you first moved in.

Your landlord can require you to pay the last month's rent rather than deduct it from your security deposit. Of course, you can always ask the landlord to allow you to deduct it.

 


Have a question?  Email us at rent@ci.berkeley.ca.us