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Landlord/tenant - Security Deposit

Having a dispute with a tenant or landlord? Rental Law discussion

Landlord/tenant - Security Deposit

Postby Rodolf » Sun Apr 10, 2016 6:00 am

I've been living in an apartment for three years.  During this time, I've caught my landlord on several occations entering my apartment with out any notice or reason. In addition I have never recieved any interest on my $500 security deposit nor have I been given the address where it is deposited. My lease just ended Aug 31st.  Two weeks ago my landlord called and said she was hiring professional cleaners to clean my apartment and wax the floors and she was deducting the cost from my security deposit.  I checked the lease and informed her that she can only deduct for damages beyond wear and tear and that I had possesion of the apt till Aug 31st.  I also stated that I wanted the chance to clean my apartment myself before Aug 31st so that I could get my full deposit back. I did not give permission for her and her hired cleaners to enter my apartment will my possissions were in the apartment or before the end of my lease.  My movers were scheduled to move out my furniture on Aug 30th at 1pm.  My landlord said she and her husband would "check out the apartment that night to see what needed to be done".  On Aug 30th my landlords and their hired cleaners entered my apartment at 11 am.   Because I had to work my boyfriend arrived at 12pm to meet my 3 movers at my apartment.  There, he found my landlords and the cleaners throwing all my remaining items in the garbage or into boxes.  My mail and last name had been removed from my locked mailbox and tossed on the counter. And while the cleaners were working my landlords were busy showing the 1B apartment to the realitor.  That evening I went through my items carelessly tossed in boxes and found a check and several other items were missing. Plus I do not know if any of my weeks worth of mail is missing or not since my landlord is the one who removed it and it was placed in a public area with 7 contracters running around in my apartment.  I have since changed my bank account number and canceled 3 outstanding checks.  My questions are 1. Can my landlord withhold my security deposit even though she neglected to pay interest?

2. Am I still entitled to the interest payment and can I receive it even if I demand my full security deposit on the basis that she broke the security deposit laws?  3. Can I charge her for the damages of the missing items / outstanding checks.  4.Does a landlord have a right to have a key to a tenants locked mailbox and do they have a right to remove the mail from it?  5.  Is removing my mail from my mailbox in my building and entering my apartment to deliver it to my kitchen and valid reason to enter my apartment?  Sorry I have so many questions.  Thank you so much for your time in reading this message.  Have a great day.   

Marybeth

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Rodolf
 
Posts: 37
Joined: Sat Mar 22, 2014 7:16 am

Landlord/tenant - Security Deposit

Postby oz » Thu Apr 14, 2016 8:10 pm

I've been living in an apartment for three years.  During this time, I've caught my landlord on several occations entering my apartment with out any notice or reason. In addition I have never recieved any interest on my $500 security deposit nor have I been given the address where it is deposited. My lease just ended Aug 31st.  Two weeks ago my landlord called and said she was hiring professional cleaners to clean my apartment and wax the floors and she was deducting the cost from my security deposit.  I checked the lease and informed her that she can only deduct for damages beyond wear and tear and that I had possesion of the apt till Aug 31st.  I also stated that I wanted the chance to clean my apartment myself before Aug 31st so that I could get my full deposit back. I did not give permission for her and her hired cleaners to enter my apartment will my possissions were in the apartment or before the end of my lease.  My movers were scheduled to move out my furniture on Aug 30th at 1pm.  My landlord said she and her husband would "check out the apartment that night to see what needed to be done".  On Aug 30th my landlords and their hired cleaners entered my apartment at 11 am.   Because I had to work my boyfriend arrived at 12pm to meet my 3 movers at my apartment.  There, he found my landlords and the cleaners throwing all my remaining items in the garbage or into boxes.  My mail and last name had been removed from my locked mailbox and tossed on the counter. And while the cleaners were working my landlords were busy showing the 1B apartment to the realitor.  That evening I went through my items carelessly tossed in boxes and found a check and several other items were missing. Plus I do not know if any of my weeks worth of mail is missing or not since my landlord is the one who removed it and it was placed in a public area with 7 contracters running around in my apartment.  I have since changed my bank account number and canceled 3 outstanding checks.  My questions are 1. Can my landlord withhold my security deposit even though she neglected to pay interest?

2. Am I still entitled to the interest payment and can I receive it even if I demand my full security deposit on the basis that she broke the security deposit laws?  3. Can I charge her for the damages of the missing items / outstanding checks.  4.Does a landlord have a right to have a key to a tenants locked mailbox and do they have a right to remove the mail from it?  5.  Is removing my mail from my mailbox in my building and entering my apartment to deliver it to my kitchen and valid reason to enter my apartment?  Sorry I have so many questions.  Thank you so much for your time in reading this message.  Have a great day.   

Marybeth

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oz
 
Posts: 32
Joined: Fri Apr 01, 2011 11:04 pm

Landlord/tenant - Security Deposit

Postby Lennon » Fri Apr 15, 2016 1:32 pm

Oh my!  I can't believe an apartment manager could be so ignorant and open the owner of the apartments up to such liability.  Following is California Civil Code Section 1950.5 for your review:

1950.5.  (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

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.   (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.   This subdivision does not prohibit an advance payment of not less

than six months' rent if the term of the lease is six months or

longer.   This subdivision does not preclude a landlord and a tenant from

entering into a mutual agreement for the landlord, at the request of

the tenant and for a specified fee or charge, to make structural,

decorative, furnishing, or other similar alterations, if the

alterations are other than cleaning or repairing for which the

landlord may charge the previous tenant as provided by subdivision

(e).   (d) Any security shall be held by the landlord for the tenant who

is party to the lease or agreement.  The claim of a tenant to the

security shall be prior to the claim of any creditor of the landlord.   (e) The landlord may claim of the security only those amounts as

are reasonably necessary for the purposes specified in subdivision

(b).  The landlord may not assert a claim against the tenant or the

security for damages to the premises or any defective conditions that

preexisted the tenancy, for ordinary wear and tear or the effects

thereof, whether the wear and tear preexisted the tenancy or occurred

during the tenancy, or for the cumulative effects of ordinary wear

and tear occurring during any one or more tenancies.   (f)(1) Within a reasonable time after notification of either

party's intention to terminate the tenancy, or before the end of the

lease term, the landlord shall notify the tenant in writing of his or

her option to request an initial inspection and of his or her right

to be present at the inspection.  The requirements of this

subdivision do not apply when the tenancy is terminated pursuant to

subdivision(2),(3), or(4) of Section 1161 of the Code of Civil

Procedure.  At a reasonable time, but no earlier than two weeks

before the termination or the end of lease date, the landlord, or an

agent of the landlord, shall, upon the request of the tenant, make an

initial inspection of the premises prior to any final inspection the

landlord makes after the tenant has vacated the premises.  The

purpose of the initial inspection shall be to allow the tenant an

opportunity to remedy identified deficiencies, in a manner consistent

with the rights and obligations of the parties under the rental

agreement, in order to avoid deductions from the security.  If a

tenant chooses not to request an initial inspection, the duties of

the landlord under this subdivision are discharged.  If an inspection

is requested, the parties shall attempt to schedule the inspection

at a mutually acceptable date and time.  The landlord shall give at

least 48 hours' prior written notice of the date and time of the

inspection if either a mutual time is agreed upon, or if a mutually

agreed time cannot be scheduled but the tenant still wishes an

inspection.  The tenant and landlord may agree to forgo the 48-hour

prior written notice by both signing a written waiver.  The landlord

shall proceed with the inspection whether the tenant is present or

not, unless the tenant previously withdrew his or her request for the

inspection.   (2) Based on the inspection, the landlord shall give the tenant an

itemized statement specifying repairs or cleaning that are proposed

to be the basis of any deductions from the security the landlord

intends to make pursuant to paragraphs(1) to(4), inclusive of

subdivision(b).  This statement shall also include the texts of

subdivision(d) and paragraphs(1) to(4), inclusive, of subdivision

(b).  The statement shall be given to the tenant, if the tenant is

present for the inspection, or shall be left inside the premises.   (3) The tenant shall have the opportunity during the period

following the initial inspection until termination of the tenancy to

remedy identified deficiencies, in a manner consistent with the

rights and obligations of the parties under the rental agreement, in

order to avoid deductions from the security.   (4) Nothing in this subdivision shall prevent a landlord from

using the security for deductions itemized in the statement provided

for in paragraph(2) that were not cured by the tenant so long as the

deductions are for damages authorized by this section.   (5) Nothing in this subdivision shall prevent a landlord from

using the security for any purpose specified in paragraphs(1) to

(4), inclusive, of subdivision(b) that occurs between completion of

the initial inspection and termination of the tenancy or was not

identified during the initial inspection due to the presence of a

tenant's possessions.   (g)(1) No later than 21 calendar days after the tenant has

vacated the premises, but not earlier than the time that either the

landlord or the tenant provides a notice to terminate the tenancy

under Section 1946 or 1946.1, Section 1161 of the Code of Civil

Procedure, or not earlier than 60 calendar days prior to the

expiration of a fixed-term lease, the landlord shall furnish the

tenant, by personal delivery or by first-class mail, postage prepaid,

a copy of an itemized statement indicating the basis for, and the

amount of, any security received and the disposition of the security

and shall return any remaining portion of the security to the tenant.   (2) Along with the itemized statement, the landlord shall also

include copies of documents showing charges incurred and deducted by

the landlord to repair or clean the premises, as follows:   (A) If the landlord or landlord's employee did the work, the

itemized statement shall reasonably describe the work performed.  The

itemized statement shall include the time spent and the reasonable

hourly rate charged.   (B) If the landlord or landlord's employee did not do the work,

the landlord shall provide the tenant a copy of the bill, invoice, or

receipt supplied by the person or entity performing the work.  The

itemized statement shall provide the tenant with the name, address,

and telephone number of the person or entity, if the bill, invoice,

or receipt does not include that information.   (C) If a deduction is made for materials or supplies, the landlord

shall provide a copy of the bill, invoice, or receipt.  If a

particular material or supply item is purchased by the landlord on an

ongoing basis, the landlord may document the cost of the item by

providing a copy of a bill, invoice, receipt, vendor price list, or

other vendor document that reasonably documents the cost of the item

used in the repair or cleaning of the unit.   (3) If a repair to be done by the landlord or the landlord's

employee cannot reasonably be completed within 21 calendar days after

the tenant has vacated the premises, or if the documents from a

person or entity providing services, materials, or supplies are not

in the landlord's possession within 21 calendar days after the tenant

has vacated the premises, the landlord may deduct the amount of a

good faith estimate of the charges that will be incurred and provide

that estimate with the itemized statement.  If the reason for the

estimate is because the documents from a person or entity providing

services, materials, or supplies are not in the landlord's

possession, the itemized statement shall include the name, address,

and telephone number of the person or entity.  Within 14 calendar

days of completing the repair or receiving the documentation, the

landlord shall complete the requirements in paragraphs(1) and(2) in

the manner specified.   (4) The landlord need not comply with paragraph(2) or(3) if

either of the following apply:   (A) The deductions for repairs and cleaning together do not exceed

one hundred twenty-five dollars($125).   (B) The tenant waived the rights specified in paragraphs(2) and

(3).  The waiver shall only be effective if it is signed by the

tenant at the same time or after a notice to terminate a tenancy

under Section 1946 or 1946.1 has been given, a notice under Section

1161 of the Code of Civil Procedure has been given, or no earlier

than 60 calendar days prior to the expiration of a fixed-term lease.

The waiver shall substantially include the text of paragraph(2).   (5) Notwithstanding paragraph(4), the landlord shall comply with

paragraphs(2) and(3) when a tenant makes a request for

documentation within 14 calendar days after receiving the itemized

statement specified in paragraph(1).  The landlord shall comply

within 14 calendar days after receiving the request from the tenant.   (6) Any mailings to the tenant pursuant to this subdivision shall

be sent to the address provided by the tenant.  If the tenant does

not provide an address, mailings pursuant to this subdivision shall

be sent to the unit that has been vacated.   (h) Upon termination of the landlord's interest in the premises,

whether by sale, assignment, death, appointment of receiver or

otherwise, the landlord or the landlord's agent shall, within a

reasonable time, do one of the following acts, either of which shall

relieve the landlord of further liability with respect to the

security held:   (1) Transfer the portion of the security remaining after any

lawful deductions made under subdivision(e) to the landlord's

successor in interest.  The landlord shall thereafter notify the

tenant by personal delivery or by first-class mail, postage prepaid,

of the transfer, of any claims made against the security, of the

amount of the security deposited, and of the names of the successors

in interest, their address, and their telephone number.  If the

notice to the tenant is made by personal delivery, the tenant shall

acknowledge receipt of the notice and sign his or her name on the

landlord's copy of the notice.   (2) Return the portion of the security remaining after any lawful

deductions made under subdivision(e) to the tenant, together with an

accounting as provided in subdivision(g).   (i) Prior to the voluntary transfer of a landlord's interest in

the premises, the landlord shall deliver to the landlord's successor

in interest a written statement indicating the following:   (1) The security remaining after any lawful deductions are made.   (2) An itemization of any lawful deductions from any security

received.   (3) His or her election under paragraph(1) or(2) of subdivision

(h).   This subdivision does not affect the validity of title to the real

property transferred in violation of this subdivision.   (j) In the event of noncompliance with subdivision(h), the

landlord's successors in interest shall be jointly and severally

liable with the landlord for repayment of the security, or that

portion thereof to which the tenant is entitled, when and as provided

in subdivisions(e) and(g).  A successor in interest of a landlord

may not require the tenant to post any security to replace that

amount not transferred to the tenant or successors in interest as

provided in subdivision(h), unless and until the successor in

interest first makes restitution of the initial security as provided

in paragraph(2) of subdivision(h) or provides the tenant with an

accounting as provided in subdivision(g).   This subdivision does not preclude a successor in interest from

recovering from the tenant compensatory damages that are in excess of

the security received from the landlord previously paid by the

tenant to the landlord.   Notwithstanding this subdivision, if, upon inquiry and reasonable

investigation, a landlord's successor in interest has a good faith

belief that the lawfully remaining security deposit is transferred to

him or her or returned to the tenant pursuant to subdivision(h), he

or she is not liable for damages as provided in subdivision(l), or

any security not transferred pursuant to subdivision(h).   (k) Upon receipt of any portion of the security under paragraph

(1) of subdivision(h), the landlord's successors in interest shall

have all of the rights and obligations of a landlord holding the

security with respect to the security.   (l) The bad faith claim or retention by a landlord or the landlord'

s successors in interest of the security or any portion thereof in

violation of this section, or the bad faith demand of replacement

security in violation of subdivision(j), may subject the landlord or

the landlord's successors in interest to statutory damages of up to

twice the amount of the security, in addition to actual damages.  The

court may award damages for bad faith whenever the facts warrant

such an award, regardless of whether the injured party has

specifically requested relief.  In any action under this section, the

landlord or the landlord's successors in interest shall have the

burden of proof as to the reasonableness of the amounts claimed or

the authority pursuant to this section to demand additional security

deposits.   (m) No lease or rental agreement may contain any provision

characterizing any security as "nonrefundable."

The courts are very lenient when it comes to "normal wear and tear" on a 3 year rental - in other words, if there were a question as to whether or not it was "wear & tear" or "damage" the Courts tend to side with the tenant due to the length of the tenancy.  

As to your questions:

1.  No your landlord cannot withhold your security deposit.  In fact, you can recover statutory damages in the amount of twice the security deposit in addition to your actual damages.  With respect to interest on the security deposit, it is my understanding that's only if it states they will put it in an interest bearing account in the lease/rental agreement.  Whether or not you get the interest has nothing to do with the fact the landlord is required to refund your security deposit within a specified number of days after you leave the premises.  

2.  Yes you are entitled to the interest payment(if it provides for that in your lease/rental agreement) in addition to your security deposit(in full), plus double your security deposit and damages and I'd also include a provision for not having the exclusive use and enjoyment of your property(by the landlord trespassing on your property) in addition to any items you had missing.  Punitive damages are in order in this case if ever I've seen them.

3.  Yes you can recover damages that are the result of her trespass.

4.  Sometimes landlords in apartment complexes keep an extra key to the mailbox(in the event you lose yours), but lately they've been leaving that between the post office and the tenant.  I'm not sure if that's a new law or not.  Landlord/tenant law is not my specialty(early in my career I did landlord/tenant law, particularly unlawful detainers), and since the laws change all the time, it would be best for you to check with your local Apartment Association to see what laws are in effect where you live.  The laws I'm stating here govern California.  However, in no event is a landlord allowed to open your locked mailbox to retrieve your mail.

5.  No - that's not a valid reason to enter your apartment - she had no right to open your mailbox to begin with.

Further, the landlord must give WRITTEN notice at LEAST 48 hours in advance if they're going to enter your residence.  That is totally aggregious for her to not provide you with any of the required written notices, not give you an opportunity to move or clean the unit - your unit - I wouldn't hesitate for a moment to pursue her in small claims court.

Please read the above Civil Code Code.  I would suggest you very quickly contact the Apartment Association wherever you live and immediately pursue a Small Claims action against your landlord.

Sorry I couldn't be of more help, but feel free to ask me any other questions you may have.
Lennon
 
Posts: 30
Joined: Sun Mar 02, 2014 4:16 am


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