Can a California landlord keep "last month's rent" and not use it for rent?
October 8, 2010 8:35 PM   Subscribe

My landlord claims that the "last month rent" deposit can only be used for rent, and though I already paid rent this month, now won't refund it. Is this legal?

Today (the 8th) I gave 30 days notice on our apartment, which I've already paid up through the beginning of November. In my notice to vacate, I reminded that landlord that I paid a "last month's rent" deposit two years ago, and was expecting that returned to me minus the pro-rated 8 days. He responded by telling me, "Sorry, last month's rent deposit can only be used for last month's rent. Guess you're paid up to December."

The way I understand the law, no matter what you call any deposit, it is always refundable. Is anyone familiar enough with California renters laws to confirm this? I don't want to sound unsure when I tell him he has to give me my money back or I'll take him to claims court.
posted by Subspace to Law & Government (18 answers total) 9 users marked this as a favorite
He's full of it, but I think you have to give notice before the first. It would help to know what city you are in too.
posted by lee at 8:40 PM on October 8, 2010 [1 favorite]

Best answer: If you have a month-to-month lease with no other rules specified in your lease, you can generally give 30 days' notice at any time, not just on the first.

The California Tenants' Guide (pdf here) says that a security deposit must be returned, and that it is indeed (legally) a security deposit even if it's being called something else, like "last months' rent" or "key fee" or "cleaning fee."
posted by needs more cowbell at 9:05 PM on October 8, 2010 [5 favorites]

Best answer: I think this is the appropriate section of the California Civil Code, and here are the relevant bits.
(b) As used in this section, "security" means any payment, fee, deposit or charge, including, but not limited to, any payment, fee, deposit, or charge, except as provided in Section 1950.6, that is imposed at the beginning of the tenancy to be used to reimburse the landlord for costs associated with processing a new tenant or that is imposed as an advance payment of rent, used or to be used for any purpose, including, but not limited to, any of the following:
(1) The compensation of a landlord for a tenant's default in the payment of rent.
(2) The repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant.
(3) The cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy. The amendments to this paragraph enacted by the act adding this sentence shall apply only to tenancies for which the tenant's right to occupy begins after January 1, 2003.
(4) To remedy future defaults by the tenant in any obligation under the rental agreement to restore, replace, or return personal property or appurtenances, exclusive of ordinary wear and tear, if the security deposit is authorized to be applied thereto by the
rental agreement.
(m) No lease or rental agreement may contain any provision characterizing any security as "nonrefundable."
Page 25 of this PDF lays it out in plain English:
Almost all landlords charge tenants a security deposit. the security deposit may be called last month’s rent, security deposit, pet deposit, key fee, or cleaning fee. the security deposit may be a combination, for example, of the last month’s rent plus a specific amount for security. no matter what these payments or fees are called, the law considers them all, as well as any other deposit or charge, to be part of the security deposit.
So it looks like even if he calls it "last month's rent", it's still considered a security deposit under the law, and there is no such thing as an unrefundable security deposit, providing you've given the proper notice to end your lease and met any other conditions to get your security deposit back.

(I'm not even close to a lawyer, so this is all just my best guess based on what I'm reading.)
posted by MsMolly at 9:07 PM on October 8, 2010 [4 favorites]

Cowbell and MsMolly have it.
posted by jbenben at 9:15 PM on October 8, 2010

I forgot to add that you should document the condition you leave the apartment in. Clean your place spic and span and take pics with a newspaper visible that's showing the current date.

You also want a walkthrough a day (or more, preferably) prior to your lease being up, but when your place is empty. If there is damage or other things he might charge you for, you want to know. You are entitled to fixing these things yourself prior to the end of your lease.

This guy sounds kinda smug and obnoxious. Don't give him any opportunity to keep any part of your deposit. You do this by leaving the place perfect and documenting it.

Good luck.
posted by jbenben at 9:24 PM on October 8, 2010

Expanding on jbenben's note: take a fuckload of digital pics. I generally take one from every corner of every room, plus both ends of each hallway. I had to take a landlord to court once, and he claimed damages to the walls on the landing of the steps, which I hadn't photographed, thus... (I still won.)

Digital pics are free. Take too many.
posted by IAmBroom at 9:40 PM on October 8, 2010

Response by poster: Thanks everyone, that was exactly what I was looking for. For some reason I my first half hour of searching wasn't giving me anything concrete.

I live in Los Angeles and my lease has expired and gone month-to-month, so I wasn't concerned about what day of the month I gave notice.

When I first moved here, I thought the landlord was a perfectly reasonable guy and the apartment was very nice, so there was no problem. I've since learned that no one who has moved out of this building has ever gotten their security deposit back, though this whole "last month's rent" thing is a shock, both financially and otherwise. I'd mentally written off the deposit, but I wasn't expecting to pay double rent in November after giving a full four weeks notice.
posted by Subspace at 10:24 PM on October 8, 2010

My state (not CA) has a thing whereby Landlords that fail to comply with the law and return deposits by a certain date, owe you double the amount in question. You go to small claims, show that the money exists, show that landlord hasn't paid it, walk out with a court ruling he owes you twice that amount. It's simple and effective.

Perhaps CA has something similar?

If so, you wouldn't tell him what you learned above (that he must return the deposit), you'd just play dumb, (perhaps make your request for it in writing, whatever is needed to ensure you have done what the law requires of you), say nothing more until the landlord's pay-by date has expired, then take him to the cleaners.
posted by -harlequin- at 10:42 PM on October 8, 2010

California does indeed have penalties for not returning security deposit on time - it kicks in after the 21st day post move-out.

Read this CA.GOV link:

It also lists lawful deduction your landlord can make, and how he must notify you of these costs/deductions. Also, how you can dispute, including agencies you can contact in the event that becomes necessary.

Usually, when a landlord with this M.O. can see you are being thorough and covering your bases, it is enough to get them to kick back your full deposit. These types usually get away with this sort of thing because most tenants don't realize how easy it is to prevent their deposit being stolen in the first place.

Don't write off your deposit - that's silly and unnecessary.
posted by jbenben at 11:02 PM on October 8, 2010

Before you involve an attorney (which may become necessary) buy yourself a couple of sheets of heavy, professional paper and some nice envelopes to match. Type up a letter, stating that you expect the landlord to be compliant in complying with state law in dealing with your security deposit and quote the relevant section of the law in your letter.

Send it by certified mail, hand deliver a copy and fax a copy. Sometimes all it takes is a tenant who has obviously done their research to get a landlord to fork over the money. If he still remains stubborn take a look at the following and start making phone calls.
posted by lootie777 at 3:47 AM on October 9, 2010

Be sure to let us know how it turns out, and good luck!
posted by BobbyVan at 7:58 AM on October 9, 2010 [1 favorite]

Response by poster: I spoke briefly with a lawyer who has no experience in the tenant law field who told me to go ahead and inform the landlord that I knew the law defined the deposit money as refundable and non-specific and to please return it, which I did in almost those exact words -- nothing emotional, nothing but the facts -- basically, just show him that I wasn't going to roll over, and to see how he responded.

He responded by telling me that it was my fault for not using the money for rent, and that since I was now paid through December, if he happened to rent the apartment before then, he'd return the pro-rated amount to me.

This is entirely unacceptable and illegal, and the lawyer advised me to stop speaking to him until I can secure some legal assistance with experience in the field, so I guess we're really going to go to court over this.

I should also add that this is a lot of money. A lot. The most I've ever handed to someone in a chunk, actually, for anything. And while I know its absurd to hear that I've written of half of it before I've even started, it was more of an emotional state than anything else - I feel like (and I am I suppose) getting out of an abusive relationship, and most of me just wants to move on. However, it's now become far too much to move on from.

I'll keep updating this as long as I'm able, I also rarely see resolution on the long-form mefi discussions.
posted by Subspace at 9:51 AM on October 9, 2010 [4 favorites]

He is wrong, go get California Tenants' Rights by Nolo Press. It covers clearly how you need to progress, what documentation you need to be collecting, and how you need to make statements to him. It also covers the matter of a pre-move out walkthrough so you don't get screwed by him attempting to use that money for cleaning costs.

I would also recommend Everybody's Guide to Small Claims Court in CA as this is clearly a case for that system. Remember, you can claim reasonable costs for your time in court for him abusing the law.

To those not living in California, the less specific but equally good books
posted by fief at 12:04 PM on October 9, 2010 [2 favorites]

I guess we're going to court

No, you're getting a lawyer, who will send a letter to your landlord informing him of your rights under the law, and what the landlord needs to do to be compliant with that law. If your landlord knows what's good for him, he'll settle with you before you get anywhere near a lawsuit.
posted by ocherdraco at 2:19 PM on October 9, 2010 [2 favorites]

I'm going to second fief's recommendation to get California Tenants' Rights by Nolo Press. I had to deal with a difficult landlord last time I moved and that book got me my deposit back.

The good news is that you probably don't need to buy the book- my local library had three copies of it on the shelf when I needed it.
posted by mintymike at 2:23 PM on October 9, 2010

If the landlord refuses to play ball, it would be really nice for everyone in LA to know who this they don't suffer the same.
posted by lalochezia at 5:30 PM on October 9, 2010 [1 favorite]

Response by poster: I agree 100%, and just as soon as I'm safely in another house I plan on sharing the details. The upside is that the reviews of his apartments have started showing up on Yelp, and consist entirely of 5-star and 1-star reviews. Hopefully other people know how to read Yelp and know that pretty much means the 1-star reviews are the truthful ones.
posted by Subspace at 7:58 PM on October 9, 2010 [1 favorite]

Please reconsider having "mentally written off the deposit" part. It sounds like this guy does this regularly and gets away with it because most tenants don't know their rights. Unless you've actually done damage to the space, clean it thoroughly — maybe even spend the money to have a professional cleaning service come in, and be sure to save the receipt — and photograph every last wall, step, nook, and cranny. Then have your lawyer take this guy to pieces.
posted by Lexica at 11:32 AM on October 10, 2010

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