Am I entitled to my deposit back if I did not give proper notice but left the property clean?
Full Question:
I stayed in a duplex in Redwood City. I didn't sign any lease but the verbal agreement was a month to month basis. I stayed there for 2 months but I have an emergency so I have to leave for TX. Of course I paid a deposit equivalent to a month's rent of $1200. I only gave my landlord a 7 day notice to vacate the premise. Is the landlord entitled to keep my deposit even if I left the premises ready to move in? Am I not entitled to get back my deposit?
05/08/2007 |
Category: Landlord Ten... ยป Lease Termin... |
State: California |
#4204
Answer:
The applicable California statutes are as follows:
§ 1950.5 Civ.
(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 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 that 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."
(n) Any action under this section may be maintained in small claims
court if the damages claimed, whether actual or statutory or both, are
within the jurisdictional amount allowed by Section 116.220 or 116.221 of
the Code of Civil Procedure.
(o) Proof of the existence of and the amount of a security deposit may
be established by any credible evidence, including, but not limited to, a
canceled check, a receipt, a lease indicating the requirement of a
deposit as well as the amount, prior consistent statements or actions of
the landlord or tenant, or a statement under penalty of perjury that
satisfies the credibility requirements set forth in Section 780 of the
Evidence Code.
(p) The amendments to this section made during the 1985 portion of the
1985-86 Regular Session of the Legislature that are set forth in
subdivision (e) are declaratory of existing law.
(q) The amendments to this section made during the 2003 portion of the
2003-04 Regular Session of the Legislature that are set forth in
paragraph (1) of subdivision (f) are declaratory of existing law.
§ 1950.7 Civ.
(a) Any payment or deposit of money the primary function of which is to
secure the performance of a rental agreement for other than residential
property or any part of the agreement, other than a payment or deposit,
including an advance payment of rent, made to secure the execution of a
rental agreement, shall be governed by the provisions of this section.
With respect to residential property, the provisions of Section 1950.5
shall prevail.
(b) The payment or deposit of money shall be held by the landlord for
the tenant who is party to the agreement. The claim of a tenant to the
payment or deposit shall be prior to the claim of any creditor of the
landlord, except a trustee in bankruptcy.
(c) The landlord may claim of the payment or deposit only those amounts
as are reasonably necessary to remedy tenant defaults in the payment of
rent, to repair damages to the premises caused by the tenant, or to clean
the premises upon termination of the tenancy, if the payment or deposit
is made for any or all of those specific purposes.
(1) If the claim of the landlord upon the payment or deposit is only
for defaults in the payment of rent and the security deposit equals no
more than one month's rent plus a deposit amount clearly described as the
payment of the last month's rent, then any remaining portion of the
payment or deposit shall be returned to the tenant at a time as may be
mutually agreed upon by landlord and tenant, but in no event later than 30
days from the date the landlord receives possession of the premises.
(2) If the claim of the landlord upon the payment or deposit is only
for defaults in the payment of rent and the security deposit exceeds the
amount of one month's rent plus a deposit amount clearly described as the
payment of the last month's rent, then any remaining portion of the
payment or deposit in excess of an amount equal to one month's rent shall
be returned to the tenant no later than two weeks after the date the
landlord receives possession of the premises, with the remainder to be
returned or accounted for within 30 days from the date the landlord
receives possession of the premises.
(3) If the claim of the landlord upon the payment or deposit includes
amounts reasonably necessary to repair damages to the premises caused by
the tenant or to clean the premises, then any remaining portion of the
payment or deposit shall be returned to the tenant at a time as may be
mutually agreed upon by landlord and tenant, but in no event later than 30
days from the date the landlord receives possession of the premises.
(d) Upon termination of the landlord's interest in the unit in
question, 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 payment or
deposit:
(1) Transfer the portion of the payment or deposit remaining after any
lawful deductions made under subdivision (c) to the landlord's successor
in interest, and thereafter notify the tenant by personal delivery or
certified mail of the transfer, of any claims made against the payment or
deposit, and of the transferee's name and address. 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 payment or deposit remaining after any
lawful deductions made under subdivision (c) to the tenant.
(e) Upon receipt of any portion of the payment or deposit under
paragraph (1) of subdivision (d), the transferee shall have all of the
rights and obligations of a landlord holding the payment or deposit with
respect to the payment or deposit.
(f) The bad faith retention by a landlord or transferee of a payment or
deposit or any portion thereof, in violation of this section, may subject
the landlord or the transferee to damages not to exceed two hundred
dollars ($200), in addition to any actual damages.
(g) This section is declarative of existing law and therefore operative
as to all tenancies, leases, or rental agreements for other than
residential property created or renewed on or after January 1, 1971.
§ 1951.2 Civ.
(a) Except as otherwise provided in Section 1951.4, if a lessee of
real property breaches the lease and abandons the property before the end
of the term or if his right to possession is terminated by the lessor
because of a breach of the lease, the lease terminates. Upon such
termination, the lessor may recover from the lessee:
(1) The worth at the time of award of the unpaid rent which had
been earned at the time of termination;
(2) The worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that the lessee proves could
have been reasonably avoided;
(3) Subject to subdivision (c), the worth at the time of award of the
amount by which the unpaid rent for the balance of the term after the
time of award exceeds the amount of such rental loss that the lessee
proves could be reasonably avoided; and (4) Any other amount necessary to
compensate the lessor for all the detriment proximately caused by the
lessee's failure to perform his obligations under the lease or which in
the ordinary course of things would be likely to result therefrom.
(b) The "worth at the time of award" of the amounts referred to in
paragraphs (1) and (2) of subdivision (a) is computed by allowing interest
at such lawful rate as may be specified in the lease or, if no such rate
is specified in the lease, at the legal rate. The worth at the time of
award of the amount referred to in paragraph (3) of subdivision (a) is
computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus 1 percent.
(c) The lessor may recover damages under paragraph (3) of subdivision
(a) only if:
(1) The lease provides that the damages he may recover include the
worth at the time of award of the amount by which the unpaid rent for the
balance of the term after the time of award, or for any shorter period of
time specified in the lease, exceeds the amount of such rental loss for
the same period that the lessee proves could be reasonably avoided; or
(2) The lessor relet the property prior to the time of award and proves
that in reletting the property he acted reasonably and in a good-faith
effort to mitigate the damages, but the recovery of damages under this
paragraph is subject to any limitations specified in the lease.
(d) Efforts by the lessor to mitigate the damages caused by the
lessee's breach of the lease do not waive the lessor's right to recover
damages under this section.
(e) Nothing in this section affects the right of the lessor under a
lease of real property to indemnification for liability arising prior to
the termination of the lease for personal injuries or property damage
where the lease provides for such indemnification.
§ 1951.7 Civ.
(a) As used in this section, "advance payment" means moneys paid to the
lessor of real property as prepayment of rent, or as a deposit to secure
faithful performance of the terms of the lease, or any other payment
which is the substantial equivalent of either of these. A payment that is
not in excess of the amount of one month's rent is not an advance payment
for the purposes of this section.
(b) The notice provided by subdivision (c) is required to be given
only if:
(1) The lessee has made an advance payment;
(2) The lease is terminated pursuant to Section 1951.2; and
(3) The lessee has made a request, in writing, to the lessor that
he be given notice under subdivison (c).
(c) Upon the initial reletting of the property, the lessor shall send a
written notice to the lessee stating that the property has been relet,
the name and address of the new lessee, and the length of the new lease
and the amount of the rent. The notice shall be delivered to the lessee
personally, or be sent by regular mail to the lessee at the address shown
on the request, not later than 30 days after the new lessee takes
possession of the property. No notice is required if the amount of the
rent due and unpaid at the time of termination exceeds the amount of the
advance payment.
