California security deposit question
September 5, 2014 3:14 PM   Subscribe

Our landlord was late returning our security deposit (past the 21 calendar day limit) and lost his right to withhold deductions. After we sent a demand via certified mail he sent a check for our deposit less some deductions. If we cash the check he sent, do we give up our right to pursue return of the full amount of the deposit?

We have a query in to a tenant resource, but my experience with these is that it takes days to a week or two to get a response. I know you are not my lawyer, but there are folks here who are very knowledgable in California rental matters. This is in Mountain View, California.

I feel the reading of California law is extremely clear that they must return our deposit, with itemized deductions, in 21 calendar days or they lose the right to make any withholdings. We are well past the 21 day marker and the landlord acknowledged having been confused about the deadlines in question. In our final walk through we had verbally agreed to the deductions they made, but after a long backstory I will not bore you with, we are not willing to overlook the latest in a long line of violations of their responsibility as landlords and general incompetency in managing their property. Just trust me, this is way past the point of "do the nice thing and give them the benefit of the doubt."

Ideally I would like to cash the check they sent so that we secure the bulk of the money, in case they drag their feet on the rest. I am concerned that if we cash that check we are implicitly accepting the deductions and might lose the grounds to demand return of the full deposit. Could we write something like "deposited under protest" on the check?
posted by handful of rain to Law & Government (11 answers total)
Call these people and ask them:

They're not down in Mountain View but can probably help since they're in CA.
posted by Aizkolari at 3:48 PM on September 5, 2014

Huh. Did not know landlord loses the right to withhold deductions, I thought the penalty (still in play for you guys) is that there is a 2x's (3x's?) penalty if you take them to small claims court.

Usually if you cash a check like this, it means you "agree" with the amount - IDK if this applies in your case, or not.

You can call the state and ask how to handle this - they have a helpline - CA.GOV website.

I would call the state to clarify before a tenants org.

If you can afford it , I would take a pic for my records and then send the check back with a demand letter for the full amount citing relevant laws, but simultaneously file in Small Claims Court for the full amount.

I'm not sure if you must go to Small Claims before a judge in order to win the 2x's (3x's?) penalties or not.

I know Small Claims is very very pro tenant in these cases.

Good luck! Call the state and verify your rights on Monday!!
posted by jbenben at 4:12 PM on September 5, 2014

I am not sure a tenant's rights organization is the best place to go for this question. Whether the landlord owes you the full amount of the deposit is certainly a landlord/tenant law issue, but that's not your question. Your question seems to be "If Person owes me $X dollars, but sent me a check for $Y amount, does depositing the check mean that we accept that the check pays off the debt in full?"

Unfortunately, I don't know the answer to that question, but perhaps looking around for information on California law regarding paying off a debt (when the amount of the debt may be in dispute) will lead you to the answer.
posted by insectosaurus at 4:18 PM on September 5, 2014

Let me clarify.... If I knew the 2x's (3x's?) penalty was automatic once 21 Days expired (HINT: IT IS) .... I would be at my local courthouse with the $50 fee and relevant documents filled out to file a small claims suit on Day 22.

posted by jbenben at 4:19 PM on September 5, 2014 [2 favorites]

This is a guide from the CA Department of Consumer Affairs regarding landlord-tenant issues. Here is a direct quote from the guide:

If you prove to the court that the landlord
acted in “bad faith” in refusing to return your
security deposit, the court can order the landlord
to pay you the amount of the improperly withheld
deposit, plus up to twice the amount of the
security deposit as a “bad faith” penalty.

I see no indication that there is an automatic penalty. Please be careful when considering legal advice you received on the internet, and do your best to verify any information you receive.
posted by insectosaurus at 4:27 PM on September 5, 2014 [2 favorites]

The guide insectosaurus linked to seems reasonable, and recommends sending a letter asserting your right to the full deposit, but if that fails, it also recommends compromising, saying that if you sue in small claims court for the full amount the landlord could countersue based on the damages they're claiming...
posted by three_red_balloons at 6:26 PM on September 5, 2014

Any landlord in California that does not return the deposit before the 21 Days expires is acting in Bad Faith.

We all know the law here. Judges love to award that penalty for just this reason.
posted by jbenben at 7:33 PM on September 5, 2014

Best answer: How much money are we talking about? Any fighting to reclaim costs is going to take time and court fees.

In addition you agreed to the deduction. Yes he didn't pay you within 21 days but as soon as you bothered him about it he gave you the check. In my opinion it is kind of greedy to seek the larger amount.
posted by AlexiaSky at 6:55 AM on September 6, 2014

Best answer: Reread your post and maybe not greedy with as many problems you had. But is it really worth it?
I'd hold on to the check until you know for sure. I think the tenants Org will know the answer.
posted by AlexiaSky at 6:59 AM on September 6, 2014

I share your concern about cashing the check indicating acceptance of the amount paid, based on a long-ago business law class (IANAL). Call a local RE attorney on Monday for a good answer.
posted by vignettist at 12:27 PM on September 6, 2014

IANAL but it seems to me that the landlord sending a check for under the full amount might be construed as acting in bad faith.
posted by CathyG at 8:26 PM on September 6, 2014 [1 favorite]

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