Splitting security desposit
March 25, 2011 1:58 PM   Subscribe

Please help me work out the most "fair" scenario in a complicated roommate/security deposit situation.

1. There are 3 people (A, B, and C) living in an apartment.
2. Total security deposit is $X.
3. A, B, and C each paid 1/3 of X.
4. In the past, as each individual person moves out, they find their own replacement and the replacement gives $X/3 to person moving out. Essentially, no money has been exchanged with landlord since the first tenants nearly a decade ago, and the person moving out takes off with their full portion of deposit.
5. A has lived in apartment for 8 years, B lived there for 6 months, and C lived there for 3 years.
6. A is moving out, while others stay and landlord wants to do a walk through. Landlord decides to take Y out of deposit to fix things that accumulated over the years (replace some carpet, repaint some walls). Landlord has not taken money out of deposit or done a serious walk through in last 8 years.

How much of Y does each person owe? What's the fairest way to handle this?

Obviously, it's not a fair situation for anyone now, because so many people throughout the years have taken off without owing a cent in the deposit. A argues that they shouldn't have to take on so much of Y since she's not the only one who's lived here. B argues that they've only lived here for 6 months (as opposed to A's 8 years) and shouldn't have to pay for barely anything.

This is slightly complicated by the fact that C is subletting illegally and landlord doesn't know. Landlord believes only A and B live there.
posted by ribboncake to Home & Garden (13 answers total) 1 user marked this as a favorite
The correct answer is:

D) None of the above.

The landlord cannot take money out of the deposit for "normal wear and tear." Paint and carpet are almost universally covered under normal wear and tear. Please call the the tenant's rights organisation in your area; you may find that the landlord in fact had a statutory requirement to repaint ever X years.
posted by DarlingBri at 2:08 PM on March 25, 2011 [11 favorites]

Um, did you just say the landlord took money out of the damage deposit for paint? Was the carpet damaged by the tenants or was it just replaced for normal wear and tear?
posted by futureisunwritten at 2:09 PM on March 25, 2011

I would hope that after 8 years in an apartment that replacing the carpet and repainting won't cost the tenants a cent. In my past apartment, they pretty much gutted it (brought the 90s style color scheme and carpet to this centry, replaced linoleum with tile, replaced countertops, etc).

If there are extraordinary damages that you are charged for, the person causing the damage should pay. That is, you knock a hole in the wall, you pay to fix it. Your roommate burns the carpet, he pays. If the damage is spread equally, everyone chips in.
posted by birdherder at 2:12 PM on March 25, 2011

All the above are correct. Your landlord should not be able to deduct money for general wear and tear, like carpet and paint. The deposit is generally for negligent and excessive damage. As always, re-read your lease carefully and if all this is the case, politely inform the landlord that he/she may not use the deposit for these items.
posted by stormygrey at 2:17 PM on March 25, 2011 [1 favorite]

This is almost certainly illegal. What state are you in?
posted by booknerd at 2:20 PM on March 25, 2011 [1 favorite]

Well, here's idea of fair, if not nitpicky (ie i'm playing it by the numbers only). This assumes no one person did any extraordinary damage, etc, and that it really is just wear and tear. That all being said, I agree your landlord is out of line, and that after 8 years, normal wear and tear is what he's responsible for, and is to be expected, and I'd fight it. But that's another AskMe, I suppose.

But you asked for how to split up the cost, so here goes:

Basically, you have 24 person years of living that are responsible for the deposit. 3 people X 8 years. Each of those 24 years is responsible for 1/24th of the damage deposit being held by the landlord.

A is responsible for 8 of those years, and initially 8/24 of the amount.
B is responsible for 3 of those years, and initially 3/24 of the amount.
C is responsible for 0.5 of those years, and initially 0.5/24 of the amount.

That leaves 12.5 years (or 12.5/24 of the lost deposit) that are unaccounted for by long-lost roommates. The hard part is to figure out who pays for this part.

The easiest way is to just divide that by 3, but it's probably not the fairest. There's no magic math equation here, but to make the numbers easy, I'd just assign C the spare 2.5, and A & B each take 5. Then, the breakdown becomes
A = 13/24 (~54.2%)
B = 8/24 (~33.3%)
C=3/24 (~12.5%)

Just my humble $0.02.
posted by cgg at 2:21 PM on March 25, 2011 [2 favorites]

Your previous question specified that you live in California. Write the landlord a certified letter, referencing California Civil Code Section 1950.5, and request that the landlord replenish your security deposit to the full amount. Here is a link to the larger section of the code. Here is the relevant text, my emphasis added:
(a) This section applies to security for a rental agreement
for residential property that is used as the dwelling of the tenant.
(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
(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.
(c) 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.
posted by juniperesque at 2:30 PM on March 25, 2011 [1 favorite]

Response by poster: Thanks for the advice so far. These are definitely things to think about. As far as I see, no single person did excess damage. I personally believe it can be argued as normal wear and tear (though the landlord specifically said he saw things that were beyond that...not sure I believe him). Unfortunately, it would also not be in our favor to antagonize the landlord because as mentioned, we do have a person living there without his consent. In my mind, I'd prefer to be on the landlords good side in case he one day finds out, so we can at least negotiate a solution. What do you think about this?
posted by ribboncake at 2:40 PM on March 25, 2011

When A departs, will the landlord expect B (and secretly, C) to come up with $[X-Y] to make the deposit whole again? Is A bringing in a replacement tenant that will also be liable for some portion of $X? I'm curious, although these aren't extremely germane to my answer...

I agree with previous posters that landlord shouldn't charge against security deposit for normal wear and tear. Also agree that "you break it, you buy it" where one tenant burns carpet, she pays for all of that, etc.

But, let's say the landlord still has some legit reason to take some percentage %Y of the deposit, and there's no clear responsible party (i.e. getting back to your actual question).

I really do understand the positions of both A and B. When I imagine being A or B, I can totally sympathize. But unfortunately, I think all 3 roommates still each owe $Y/3.

Here's my thinking: everyone understands the general objective of a security deposit, yes? It's money, held by the landlord, which might not be returned, paid in advance by the tenants in event of repairs or damage.

That everyone in the history of this particular apartment is accustomed to getting to waltz out at lease end without having to do a wear-and-tear walkthrough—which would have resulted in a fair and equally distributed amortization of the security deposit over the years—and instead thereby always getting back 100% of their original contribution $X/3... isn't really the landlord's problem now.

The tenants who already bailed and got their full $X/3? Not their problem either.

The way I see it, the flexibility of this particular apartment (where tenants have been able to avoid all the annoyances of a normal landlord: proper leases, proper walkthroughs, rigid and uniform lease lengths, landlords vetting replacement tenants and sub-lessors, etc.) is a bonus.

A, B, and C (and everyone who has ever lived there over the last 8 years) got a sweet no-hassle deal, and for the most part, everyone got all their money back.

But the wheel of fate does eventually stop spinning. The risk always existed that at some point, the landlord would come knocking, and that some amount of security deposit would get kept. It's been 8 years, after all.

Simply put, the wheel stopped on A, B, and C—and all three should equally share the loss. Each tenant accepted equally the risk—at the point where he/she entered the apartment and paid $X/3—that it wouldn't all be returned. When he/she leaves doesn't matter, to my mind. Each tenant knew the deal upon moving in.

It sucks that the previous however many tenants escaped unscathed... but the wheel didn't stop on them, it stopped on y'all. It could have stopped on them, and then they'd be asking this question here now. It had to stop on someone, though.

Someone who is concerned about contributing the fairest share of security deposit, and likewise receiving back the fairest share of security deposit, should have insisted on pro-rated initial contributions at move-in, as well as getting mutual buy-in to regular landlord walkthroughs at each tenant's move-out. No one did that. Everyone equally accepted the risk.

A will probably pay less than she "rightly" owes. B will probably pay far more than he "rightly" owes. (C should just pay quietly and be glad to not get evicted.) But all around, it's a karma payment for getting to move into a sweetheart deal.

∴ $Y/3

I wish I had a neater answer for you than "sometimes your number is up", but there it is. I think that B and C should each pay their third of $Y to A (who presumably will feel the whole brunt of $Y upon departure).... and that going forward, B and C should decide how to make sure this doesn't happen in the future when either of them leaves. Then the new tenant replacing A should be clearly told the deal going forward.
posted by pineapple at 2:56 PM on March 25, 2011 [1 favorite]

Not wanting to antagonize him is not the same as letting him screw you. I would more or less assume that he's not going to want to throw you out as getting replacement tenants is a) time consuming b) a loss of income c) going to require him to paint and recarpet at his own expense ANYWAY... so seriously, take photos, write the letter, send it certified mail and stand your ground.
posted by DarlingBri at 3:22 PM on March 25, 2011

Carpet is replaced at landlord's expense every 8 years in CA, and repainting is every 4 years. This is non-negotiable as per state law.

Repairs to holes in the wall are yours to pay for. Furthermore, he should have been doing yearly inspections and maintenance. Not sure if there is a law about this, but I assume there is some requirement (maybe by jurisdiction?) since I used to have to perform inspections yearly...

Depending on your city in CA, landlord may owe you annual interest on your security deposit, as well. WeHo, Santa Monica, and Berkley come to mind. Check you local jurisdiction?

Ca.Gov Tenant handbook answering all your questions - HERE.

DarlingBri makes an interesting point about vacating your unit, however, I know by year 8 I'd be praying for your notice so I could rehab the unit entirely and re-rent at market rate. So, depending on your rent rate + overall market conditions in your area, YMMV on this one.

(the good news here is that it SUCKS to rent out 3 bd units and they sit vacant longer than other rentals even in a tight market.)
posted by jbenben at 4:00 PM on March 25, 2011

Honestly, unless you want to make your life really complicated, I think it makes the most sense for A, B and C to just pay up equally. (assuming that the costs are actually legit). If B and C are mad that they didn't live there when some of the damages were made, the time to negotiate that was before they paid a full portion deposit when they could see the apartment wasn't in like-new condition. Once they did that, they essentially took responsibility for the condition of the apartment at their move-in date.

Another thing I'd check up on is if it's OK for your landlord to take money out of a deposit before your lease is over. For some reason I always thought they couldn't take anything out until you were actually moving out and trying to recoup the deposit.
posted by nakedmolerats at 7:12 PM on March 25, 2011 [1 favorite]

As a tenant in a place with some legal protections, I think this is what I would do:

Express general agreeability to the landlord. Have him come walk through. Ask him for a signed list of 'damages' and the estimates for repair. 

He may himself back off then, at putting his attempt to gouge you on paper. 

If not, bring the paper to a tenant's clinic and find out which damages and estimates are/would be legit if you were vacating the apartment. 

Write the landlord a very friendly note, delivered registered mail. Say that you talked with xyz clinic and understand that abc seem like legit damages to be repaired out of the deposit but not until move out. Say that you really appreciate your 8 year landlord tenant relationship and that you don't want to put him through unnecessary hardship or worry. Offer him something - to paint the walls yourself, a certain amount of what he's asking for, etc. Say that you'd really like to come to a mutually beneficial resolution because you like him and the apartment, and ask him to write down a suggestion for a compromise, if yours doesn't seem right, so that you can think about it and take it to the clinic for their help. 

Basically, be very nice, admit/promise nothing (beyond an initial compromise that you'd really be comfortable with), make the clinic the bad guys, and do everythinG - and make him put everything, in writing. 

For whatever you do end up negotiating, I'm not sure there's a fairer way than just to split evenly. On move on, each tenant knew that all of their contribution to the security deposit would be vulnerable to the landlord's damages if the lease happened to end while they were living there.
posted by Salamandrous at 7:15 AM on March 26, 2011

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