Dave’s here to answer your questions every Wednesday, so send them to him at tenant@sfappeal.com, here’s what to make sure to include in your letter.
Here is the situation with my previous landlord:
He gave me a verbal agreement that he would return the security deposit ($1500) to me within 14 days (this would have been July 15) but under the lease he had 18 days (July 19th). Upon moving out and returning they keys he was unresponsive and did not return calls or emails. After almost 2 weeks had passed we received an email saying he found scuff marks on the floors and walls and that he would get back to us soon with how much he would need to withhold for repairs.
Given these scuff marks pre-dated our time in this apartment, we sent photographs (with time stamps proving the date the photos were taken) that indicated the poor condition of the floors and scuff marks on the walls and also reminded our landlord about the normal wear and tear clause of the lease and cited several articles that point out that scuff marks fall into this category.
We sent these emails to him on July 12, responding immediately to his email about the scuff marks. We have not heard from him since. On July 19th when neither the security deposit nor the balance of the deposit with an itemized list of repairs was returned, I called my landlord to inform him that since the deposit had not been returned we were taking action to file a claim in small claims court but that we would prefer to settle this out of court.
He did not answer, so I left him a message with these details. I called him again the following day (from a different phone in case he was screening our calls) and left him another message with the same details. On July 20th my roommate and I drafted a formal demand letter (based on advice from the SF tenants rights website) and mailed him a hard copy via certified mail.
In this letter we gave him until August 4th to return the security deposit (which we would expect in full or very nearly full since the damage was not due to us). We said if he doesn’t return the deposit, we would sue him for the $1500 deposit plus an additional $1500 for illegally withholding the deposit.
Given his unresponsiveness, we don’t expect to hear from him (although we know the letter was signed for and received) and are expecting we will have to take him to court. Any advice you could give on our situation is greatly appreciated.
We are also worried that the landlord may be bankrupt or insolvent – our neighbors informed us they received a notice that he was $826,000 in debt on outr building and to not pay him any money. Is there anything we can do if this is the case? Or do we just have to give up on our deposit?
The only mistake you made (besides renting the apartment from this schmuck in the first place) was that you misquoted the statutory damages in your letter. You should sue the landlord for $1,500.00 plus $3,000.00 in statutory damages (California Civil Code § 1950.5(l)) because he withheld your deposit in bad faith.
In many cases a small claims court will not award the statutory damages for one reason or another, but in your case the facts, as you state them, prove that the landlord refused to return the deposit based on a pretext that was a lie.
Sue him for $4,500.00. Don’t worry collecting the money. That part comes after you get a judgement. BTW, the small claims limit in California just increased to $10,000.00.
Pick up a copy of Everybody’s Guide to Small Claims Court in California, by Ralph Warner, Nolo Press. You can find Nolo Press Guides in most larger bookstores or buy one online from the publisher.
If the landlord files for bankruptcy after you get a judgment, California Civil Code §1950.5(d) states, “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.” As I pointed out in an earlier “Tenant Troubles,” your claim goes to the top of the list in bankruptcy court.
The Tenants Union website is a great resource, but nothing beats bringing your documents to them and getting live counseling from a well-informed volunteer.
Jeez, Louise, if every tenant in California wrote to their state legislators every frickin’ time a landlord ripped off a security deposit, maybe, just maybe, the law could be re-written to reflect proactive preventions enacted by many other states.
So try this readers, paste this article into an email and demand all of my proposed changes to the law (except the small claims limit increase), and send it to: Mark Leno, Tom Ammiano, Fiona Ma, and Leland Yee.
Dave Crow is an attorney who specializes in San Francisco landlord tenant law. However, the opinions expressed in these articles are those of the author, do not constitute legal advice, and the information is general in nature. Consult the advice of an attorney for any specific problem. You understand that no attorney-client relationship will exist with Dave Crow or his firm, Crow & Rose unless they have agreed to represent you. You should not respond to this site with any information that you believe is highly confidential.
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