A security deposit is a lump sum of money paid by the renter to the landlord upon signing a lease meant as a sort of insurance for the landlord against damage caused to the unit while inhabited by the tenant. Because there is no third party mediating the transfer of the funds, the withholding of a security deposit often becomes contentious. One of the most common complaints we've heard from tenants concerns the unilateral seizure of the security deposit by landlords. This article presents a rough outline of the steps you can take to recover your security deposit in the event that your landlord withholds all or some of your deposit after you move out.
Check your local laws concerning security deposits
Many states and cities have enacted laws requiring certain conditions to be fulfilled in order for a landlord to withhold. Here is a partial list of protections commonly implemented to protect tenants against security deposit fraud:
- Landlord must provide an itemized list for deductions
- Landlord must provide receipts for deductions over a certain threshold ($126 in CA)
- Normal wear and tear is excepted from deductions
- Landlord must schedule a walkthrough with the tenant with 30 days before move-out to determine condition (famously this is a state law in WA)
- Punitive damages in excess of the security deposit (usually 2x-3x) if the landlord is found to have illegally withheld the deposit
- Time limit for the landlord to return the security deposit (usually 30 days after move-out)
- Any provisions that may exist in your lease agreement
It may be difficult to parse the patchwork of city, county, and state laws to determine whether an action taken by your landlord was actually legal. If you live in a city with a rent board or tenant's union, get in touch with them and they can help you figure out your particular situation. If not, consider contacting a tenant and landlord attorney - they will often give you an initial consultation at no charge.
Demand your deposit back from your landlord
If you have determined that your security deposit was held illegally and you live in a jurisdiction with a rent mediation board, you can usually skip this step and just file a dispute with them. But, if you are considering court action, it is a good idea to send a letter via certified mail clearly explaining to your landlord that the withholding was illegal and provide your reasoning. Though this is unlikely (although certainly possible) to persuade your landlord to return your money, it demonstrates effort on your part to reobtain your money and provides record that there is a dispute. If your landlord is not responsive, it can help establish in court that your landlord is simply trying to evade the issue.
File a case in small claims court
In almost all cases, the security deposit amount is less than the limit for small claims court. Small claims court cases involve private disputes over "small" amount of money, are usually much faster than a more formal court case, and often forbid trial by jury. There are a few things to keep in mind when filing your case.
- Jurisdiction: You should file with the courthouse in the district of the rented unit for which the security deposit was withheld.
- Naming convention: Small claims court can also be referred to as "county court" or "magistrate's court."
- Deadline: There may be a statute of limitations on your case depending on the jurisdiction.
- Evidence: You are required to submit any evidence you wish to present in the case along with the filing documents.
Once you have filed your case, the court will process the paperwork and send you and your landlord a notification with a scheduled court appointment. At this point, you may also have a responsibility to provide the evidence you wish to use to your landlord, usually by some number of days before the court date.
Of course, the best course of action is to avoid getting to this point in the first place. It helps to have a move-in/move-out checklist or inventory form which is signed by both parties, although this requires cooperation from your landlord. The best thing you can do on your own, and what we strongly recommend, is keeping extensive photo/video record of the condition of the apartment when you move in to establish what damage was already present and again when you move out - in case a claim of damage is falsely made by your landlord. Even with the existence of hard evidence in your favor, landlords have been known to still illegally seize deposits, gambling on the hope that the tenant will simply lack the resources to take action. An escrow system, i.e. an unbiased third party that holds the security deposit and mediates any dispute, would solve this all-too-common problem, but unfortunately this has not been implemented anywhere to our knowledge.