A complete misjudgment of character
August 21, 2008 4:21 PM   Subscribe

Our Landlord wrongly kept 5700 of our 6100 dollar deposit. Things were just made up to charge us for. What can one do? Sticky situations inside

We plan on suing her in small claims court, but we don't have good records of before we moved in, We have some records regarding internal emails and some photos. When we moved in the house was in very poor condition, but we cannot prove this. Some claims are completely false, but again, if we went to court, it is a he said/she said type thing. However, almost every deduction was not listed as an issue on our walkthrough. Basically our landlord went from being very affable to completely adversarial as soon as we moved out.

How can we maximize the chances of getting our deposit back, and what should we make sure we do? We lived in Oakland. Thanks
posted by Large Marge to Law & Government (12 answers total)
Get the records of what the landlord charged the previous occupants. Are they charging you for damage they also charged the previous occupants for?
posted by hworth at 4:46 PM on August 21, 2008

It won't just be he said/ she said if you can produce credible witnesses who can testify from personal knowledge about what the actual conditions were upon move-in or move-out.
posted by mmf at 4:51 PM on August 21, 2008

$5700 is over the $5000 limit for California small claims, but it's easier to go that route if you can eat the $700. Regardless, I'm of the mind that the judge will look very disfavorably on the amount retained given a relatively clean walkthrough. Beyond that, once you file for court you can subpoena the records for that unit to see what was fixed after the previous tenants moved out, as well as receipts and work orders for the current work your $5700 is supposed to cover. If you can track down the previous tenants and then come up with pictures of the interior of the apartment, you can note the testimony of the previous tenants that the work wasn't done, is a result of normal wear and tear, etc. Civil court is based on a preponderance of evidence, so any information you can get to support your side will help you if the landlord doesn't have records.

$400 back is an insult! Upshot being triple damages if this goes beyond the three week deadline for deposit return.
posted by rhizome at 4:54 PM on August 21, 2008

Check out http://www.tenantslegalcenter.com/. They are a great resource for tenant law. Its tailored to san diego county, but you should find some interesting state law and guidelines that fit your area. There is a section on security deposits
posted by ShootTheMoon at 5:07 PM on August 21, 2008

I just moved out of an Oakland apartment, read the CA tenants rights manual back to front, and if your landlord didn't list these problems on your walkthrough, it's pretty difficult for her to justify charging you for them.

From The CA Dept. of Consumer Affairs:

Final inspection

The landlord may perform a final inspection after the tenant has moved out of the rental. The landlord may make a deduction from the tenant's security deposit to repair a defect or correct a condition:

* That was identified in the inspection statement and that the tenant did not repair or correct; or,
* That occurred after the initial inspection; or
* That was not identified during the initial inspection due to the presence of the tenant's possessions.

So unless she's claiming that you caused $5700 worth of damage since your walkthrough, or that it was all somehow hidden by your furniture, you should be okay.
posted by granted at 5:26 PM on August 21, 2008

Ask for copies of receipts for all the work that they're charging you for, and detailed descriptions of the work that was done. Also, from the state's small-claims site:
How much can a security deposit be?
If security deposit is for a residential property without furniture, the security deposit may equal 2 times the rent.

If the residence is furnished the landlord may charge up to 3 times the rent.

There is no restriction on the amount of the security deposit for the rental of a commercial property.

Does a security deposit have to be returned?
If a tenant damages the property, the landlord can deduct the cost of fixing it from the security deposit. But if the tenant returns the rental in substantially the same condition in which it was rented (less reasonable wear and tear), the landlord must return the deposit. A landlord can't make tenants pay for painting, new carpets or curtains, unless there was serious damage. The landlord is allowed to deduct the cost of cleaning if necessary to put the unit back to the same level of cleanliness it was in at the time the property was leased (less reasonable wear and tear).

Within 2 weeks of the tenant's move-out date, the landlord must advise the tenant, in writing, of the right to be present at a walk-through with the landlord. The purpose of the inspection is to allow the tenant an opportunity to repair damage pointed out by the landlord.

When can I get my deposit back?
After you move out, a landlord has 3 weeks to return the security deposit or send a list of how much each of the damages cost including all receipts. Click here for help writing a letter asking a landlord to return a security deposit. A landlord can only charge a tenant for unpaid rent and for fixing damage by the tenant that wasn't caused by normal use.

Note: If you also paid "last month's rent," that rent will not be returned. It must be used for your last month's rent.

Must I notify the landlord before I move out?
Yes. If you pay rent once a month, you have to give your landlord 30 days' notice in writing. If you don't, the landlord can charge you for the unpaid rent. Unless a new tenant pays the rent, you'll have to pay for those 30 days. If you pay rent every week, you have to give 7 days' notice.

What if I think the landlord is keeping too much money for repairs?
The landlord has to prove that the repairs are necessary and reasonable and must provide you with receipts for those repairs.

What if I don't get my deposit back after 3 weeks?
Write a letter to your landlord if you feel too much was retained from your security deposit and explain why you believe you are entitled to a larger refund.

Keep a copy of the letter for your records.

What if I can't agree with the landlord?
File a claim in small claims court. You can sue for the deposit plus twice the amount of the security deposit in damages. The judge will give you damages if the landlord retained your deposit in bad faith.

Note the part about the maximum deposit amount. . . Is that deposit more than double the monthly rent? Also, maximum damages for small-claims is $7500 in CA.
posted by BrandonAbell at 5:33 PM on August 21, 2008

You lack evidence so start collecting it. If you have any meetings with them be sure to (secretly) tape record them incase they say anything incriminating.

One morning I woke up to find the neighbour (a friend of the landlord) had erected scaffolding in our backyard and begun construction on a house. We complained about it and the next morning we got an eviction notice saying that for unrelated reasons he wanted to move in and give us 40 days notice. We had a meeting with him and recorded him saying that the eviction was in part influenced by our complaint (which is completely against the law). Later we reached a settlement but it was good to know we had evidence if needed, so that's why I'm saying that this should be your approach.
posted by holloway at 6:04 PM on August 21, 2008

Many landlords seem to be under the mistaken impression that the rental bond is theirs. Not so. It's the tenant's, kept in trust by the landlord; in many jurisdictions, kept in trust by a government agency. By default it is to be returned entirely to the tenant, and the landlord must justify any claims out of it, generally with receipts and documentation of any damages.

On that point, most jurisdictions limit the amount of rental bond asked for to four to eight weeks' rent. $6100 seems excessive unless this is a very upmarket property, which it might well be, but that in itself would indicate that you're not the sort of tenants who'd do $5700 worth of damage.

Talk to your local tenant's union. Small claims is good if you can write off the difference (probably part of the landlord's evil plan, from the sounds of it). Otherwise, you'll have to sue her.
posted by aeschenkarnos at 6:56 PM on August 21, 2008 [1 favorite]

When we moved in the house was in very poor condition, but we cannot prove this.

It's important to distinguish between damage and normal wear and tear. The prototypical landlord scam here is to claim damage to carpets and charge you for new. But the landlord has to be able to prove (in my state) that the carpets were damaged beyond normal usage for the length of tenancy. Similarly, just because the landlord wants to fix up the place doesn't mean he can charge you for it.

I would prepare as if I had to go to court, but I would also try to simply call the landlord's bluff here. Write a terse letter back citing state law regarding security deposits. State that you were given no indication of these problems at the walkthrough. State that you do not believe any of the condition of the apartment is attributable to you beyond normal wear and tear. State that you expect your deposit to be returned to you within the time period specified by law or you will see them in court. Do NOT use angry or emotional language. Perhaps state that you are disappointed that the relationship you had with the landlord did not allow them to communicate these issues to you in a timely manner.

Very likely the landlord is not prepared for a tenant who actually knows the law and is willing to fight. Maybe they pull this regularly. There are a lot of tenants who would just shrug their shoulders and give up, maybe because they themselves have had poor experiences in housing court. The landlord is counting on you rolling over. Don't.
posted by dhartung at 9:55 PM on August 21, 2008

You might consult the Nolo Guide to being a landlord -- it will help you quickly determine if there was something your landlord should have done but didn't. I'm sure one is available at Oakland libraries. Here's a quick summary of what they have to say about getting your security deposit back. I seem to remember there was fairly extensive treatment of the security deposit in the book.

The City of Oakland's housing and landlord/tenant dispute webpage refers people to Sentinel Housing, who link to these bits of state law and have this to say about getting your deposit back.

Unfortunately, Sentinel is closing. But they have a suggestion:
Sentinel Fair Housing will be assisting clients with fair housing and landlord-tenant questions until June 30th, 2008. If you have housing concerns after June 30th, 2008 please contact Bay Area Legal Aid at (510) 663-4744 for fair housing questions, East Bay Community Law Center (510) 663-4744 for landlord-tenant questions, and Eden I&R at 211 for other housing referrals.
Here are some more Landlord/tenant attorneys in Berkeley / Oakland.
posted by salvia at 10:14 PM on August 21, 2008

I don't have any comment on this particular case, but recently I also had this problem. If you are calm, professional, and know what you are talking about, stand firm!
posted by toastchee at 11:05 AM on August 22, 2008

Response by poster: It was a large house (6 roommates). We have currently collected a lot of records including unreachability of the landlord throughout the entire year. We think we have a good case in general (nothing on the deductions list was mentioned at the time of the walkthrough, and she declined to perform a full walkthrough at the time)

It is now 22 days after the walkthrough, and while we recieved a notification yesterday, we still have not recieved the check or any reciepts there might be. We think this means the landlord has past the deadline and can no longer hold any deposit. Are we correct in this assumption?

Also, is it worth contacting an attorney? How much should we expect to pay for legal advice on this issue?
posted by Large Marge at 12:01 PM on August 22, 2008

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