Who is responsible for returning my security deposit?

[FedUpRoommate]

My question involves landlord-tenant law in the state of: California.

Short version:

-I moved into an apartment with two other girls (we were all on the lease)
-I stayed until the end of the lease and then moved out
-My two roommates decided to stay after the lease was up and signed a new lease
-It has been 23 days since I moved out and I have not received a refund of my deposit from my landlord or roommates

Who is responsible for returning my deposit?




Long version:

I signed a lease with two other girls for a three bedroom apartment. The deposit was $1000, of which I paid my third ($333.33). We were in agreement that this would be a temporary living situation since the rent was going up at the end of the lease (May 31, 2012) and it wasn't that nice of an apartment. Towards the end of April, the landlord had stopped by a couple of times to see if we would be signing a new lease or leaving at the end of May. My roommates and I discussed it and I made it clear that I was not staying. However, they both decided that it was too much of a hassle to move, so they wanted to stay.

At some point in May they both signed a new lease (this is according to the landlord since I was not there when it happened). I had talked to the landlord at the beginning of May informing him that I was not going to be signing a new lease and also asking him how to go about getting my security deposit back. He told me that I needed to work it out with my roommates and that he would not be returning any of the deposit as long as the apartment was occupied. I tried to discuss it with my roommates, but we were not on the best terms and they both felt they shouldn't have to pay it out of their pocket. They also didn't think they owed me the full amount since damage had been done to the apartment (not by me) and weren't sure what the cleaning costs would be. I told them that I would clean my room before I left, which I did. If anything, I left my room in better condition than when I got it (I took a lot of pictures) We came to an understanding that the landlord would come and assess my room and give them an estimate of how much of my deposit to return. I moved out May 31, 2012 (the date the lease ended).

I had spoken to the landlord before I moved out asking that he call me when he did the walk-through of my room, which he said he would. By June 4, I had still not heard from him so I called him several times over the next couple of days and left messages on his voicemail. On June 9, the landlord finally calls me back and says he was out of the country for a few days. He says he will have to set up a time with my ex-roommates to do the walk-through and will call me when he has it arranged. By June 12, I have not heard from him, so I call him again. He says that he stopped by the apartment and no one answered, but he isn't sure that my ex-roommates still want to do the walk-through because he received a check from a new person for rent, and he thinks that someone else is occupying the room now. He says that I should just try to get the deposit from the new tenant or work it out with my ex-roommates.

Now I'm a little annoyed at getting the run-around for so long and getting nowhere. I'm beginning to think that my landlord owes me the security deposit. I look at my lease and it says that the landlord must return the deposit within 21 days of the premises being surrendered. But I realized that I had not given him an address to send the deposit to even if he were to pay it (which I knew he wouldn't) so I called him to give him the address. He once again made it very clear that he would not return the deposit as long as the apartment was occupied. He said even if he were to return it he has no way to know about the cleaning/damages to the room BECAUSE I NEVER CALLED HIM TO DO THE WALK-THROUGH. This is a flat-out lie since I made every effort to have him do the walk-through, which he was clearly not concerned about.

It has now been 23 days since I moved out and I have received nothing from the landlord or from my ex-roommates. I have attempted to call my ex-roommates, but they don't answer their phones or return my calls. I have talked to some people for legal advice and was told that the landlord doesn't have to pay the deposit so long as my ex-roommates are living there even though my lease ended and they signed a brand new one. My ex-roommates texted me one time saying they had talked to someone about legal matters and know that they don't have to return my deposit until they move out and then split whatever the landlord gives them back. I just can't believe that this is the way the system works, so I've come here to hopefully find out what to do now. I would prefer not to take this to small claims court, but I am willing to if that's what it comes to. But I really don't know who is responsible to pay me the deposit? Should I try to collect it from the landlord or from my ex-roommates? And how should I go about it?


Any advice would be helpful! Thank you in advance!

 

[sandyclaus]

I believe that the remaining tenants would be responsible for returning your security deposit.

When you moved out, the LL SHOULD have done a walkthrough and assessed damages at that time so that he could settle the security deposit. What he did instead was rolled it over in full. That means the girls now have the benefit of the additional deposit amount YOU should have received back (assuming that there were no damages you left behind and you had no amounts due and owing that needed to be deducted from it). Since they benefit from it, they need to repay you that amount.

 

[justalayman]

I believe that the remaining tenants would be responsible for returning your security deposit.
.

I was thinking it was the LL.


OP's contract terminated. That means LL must return deposit. If it was paid to the LL in 3 payments (1 from each tenant), he could pay it out in the same manner. If it was all one group payment, LL should pay out in that manner. Once that payout is made, OP either has their deposit or all 3 roomies cash the check and split it (as it should be made out to all 3 tenants as payee).

Then, remaining tenants can pay LL the required deposit for the new contract.

What happened is LL simply took the deposit from the original contract and applied it to the new contract. The problem: there are different parties to the new contract so you cannot do that. It would be no different than if everybody moved out and totally new tenants moved in but the old tenants deposit was applied to the new tenants contract.


Why it looks like it is ok here is because people look to the new contract as an extension of the old contract. It isn't.

If you look at this new contract, how does it record the payment of the deposit? That should show it was a payment received by the two new tenants but in truth, what it is is a payment from all 3 of the previous tenants. LL has to pay out to the previous 3 tenants and accept money from the two new tenants. He didn't do that.

Now, new tenants could make it easy and just pay OP her share of the deposit but they are not obligated to do so. The LL failed to pay out the deposit to the tenants of the prior lease.

 

[BL]

I was thinking it was the LL.


OP's contract terminated. That means LL must return deposit. If it was paid to the LL in 3 payments (1 from each tenant), he could pay it out in the same manner. If it was all one group payment, LL should pay out in that manner. Once that payout is made, OP either has their deposit or all 3 roomies cash the check and split it (as it should be made out to all 3 tenants as payee).

Then, remaining tenants can pay LL the required deposit for the new contract.

What happened is LL simply took the deposit from the original contract and applied it to the new contract. The problem: there are different parties to the new contract so you cannot do that. It would be no different than if everybody moved out and totally new tenants moved in but the old tenants deposit was applied to the new tenants contract.


Why it looks like it is ok here is because people look to the new contract as an extension of the old contract. It isn't.

If you look at this new contract, how does it record the payment of the deposit? That should show it was a payment received by the two new tenants but in truth, what it is is a payment from all 3 of the previous tenants. LL has to pay out to the previous 3 tenants and accept money from the two new tenants. He didn't do that.

Now, new tenants could make it easy and just pay OP her share of the deposit but they are not obligated to do so. The LL failed to pay out the deposit to the tenants of the prior lease.

I agree ,the Landlord need to return that portion ,and then request the remaining two to make it up.

The Landlord did not handle this properly .

The poster's contract ended with the landlord.

 

[FedUpRoommate]

I was thinking it was the LL.


OP's contract terminated. That means LL must return deposit. If it was paid to the LL in 3 payments (1 from each tenant), he could pay it out in the same manner. If it was all one group payment, LL should pay out in that manner. Once that payout is made, OP either has their deposit or all 3 roomies cash the check and split it (as it should be made out to all 3 tenants as payee).

Then, remaining tenants can pay LL the required deposit for the new contract.

What happened is LL simply took the deposit from the original contract and applied it to the new contract. The problem: there are different parties to the new contract so you cannot do that. It would be no different than if everybody moved out and totally new tenants moved in but the old tenants deposit was applied to the new tenants contract.


Why it looks like it is ok here is because people look to the new contract as an extension of the old contract. It isn't.

If you look at this new contract, how does it record the payment of the deposit? That should show it was a payment received by the two new tenants but in truth, what it is is a payment from all 3 of the previous tenants. LL has to pay out to the previous 3 tenants and accept money from the two new tenants. He didn't do that.

Now, new tenants could make it easy and just pay OP her share of the deposit but they are not obligated to do so. The LL failed to pay out the deposit to the tenants of the prior lease.

See, that's what I thought. My contract ended, so the deposit should have been paid back to me by the landlord. But the couple of people I talked to for legal advice said that even though they signed a new lease it's still looked at like a lease take over and that the landlord doesn't have to pay back the deposit until ALL of the people on the original lease move out. They said that as long as one of them were still living there then the landlord could hold onto the deposit. They said that we were jointly liable for the apartment as a group, so if part of the group stayed I'm still accountable. This makes no sense to me though because now I've basically paid a third of a deposit on an apartment that I don't live in and money could be taken out of the deposit for damage caused by them and their new roommate. I guess I don't understand what the point is of having a lease with an end date if I fulfill my obligations as a tenant for that lease, and decide to leave, but am still being held accountable as if I still lived there.


"What happened is LL simply took the deposit from the original contract and applied it to the new contract. The problem: there are different parties to the new contract so you cannot do that. It would be no different than if everybody moved out and totally new tenants moved in but the old tenants deposit was applied to the new tenants contract. "

I agree, but this was not the consensus I was getting from other people regarding the matter. And since the LL didn't do a walk-through or anything, wouldn't he have to pay back the full amount of my deposit since he has no way to know what condition the apartment was in when I left? I do have pictures from when I moved out to show that my room was completely clean.

 

[justalayman]

They said that we were jointly liable for the apartment as a group, so if part of the group stayed I'm still accountable.

there are a couple situations that could be a problem for you so...

With your lease, did it have an automatic extension if you did not terminate it?

Did you provide notice to quit as the lease or law requires?

Did the remaining tenants actually sign a new lease?


If you did not terminate the old lease as required (notice), the lease may have simply extended. If the new tenants did sign a lease, that helps you as obviously you are not a tenant because you have not signed that lease.

 

[Searchertwin]

My question involves landlord-tenant law in the state of: California.
Who is responsible for returning my deposit?

What you failed to answer is this: Did you each write a separate check for the deposit or one?

If it was separate, the LL owes you your share of the deposit

If it was a combine check, than LL has to return the check to the person who wrote it out. Which is why you will have to wait till they leave the place.
But LL should do what is right and return and collect.

If you wrote it out, the full amount goes to you and you divide among the other two.

LL than has to get the new deposit from the other two and the new one. Which is no concern of yours.

LL will lose on any damages that you did, because he fail to do a walk-through. His problem, not yours

I suggest you send him a crr letter stating: depends on what choice above pertains to you


But as stated Justalayman, return depends on other things:

With your lease, did it have an automatic extension if you did not terminate it?

Did you provide notice to quit as the lease or law requires?

Did the remaining tenants actually sign a new lease

 

[FedUpRoommate]

With your lease, did it have an automatic extension if you did not terminate it? No. I don't have the lease on me right now, but it said that if another lease was not signed before the current lease was up then the agreement would turn into a month-to-month situation.

Did you provide notice to quit as the lease or law requires? I told the LL I was leaving a month in advance, but I did not give written notice. I didn't think it was required since my lease was ending and the LL never requested written notice.

Did the remaining tenants actually sign a new lease? Yes. According to the LL my two ex-roommates signed a new lease at some point in May. Apparently there is a third person living there now who moved in sometime after I moved out, but according to the LL the new person is not on the lease.

Did you each write a separate check for the deposit or one? Unfortunately the deposit was not paid with a check. In retrospect it would have been a much better idea, but I can't change what happened. We all paid the deposit in cash. We met the LL at the apartment and gave him each our third of the deposit (well, technically I gave him my third and one of my other roommates paid the remaining amount since the other roommate didn't have the money at the time). But he didn't give us individual receipts or even count our money individually; he just counted the total. The only receipt we got was that he wrote on the lease that the deposit and first month's rent had been received. Do the same rules apply with cash as far as how the deposit is refunded? Or is this a completely different situation?


"I suggest you send him a crr letter stating: depends on what choice above pertains to you"

What is a crr letter?

 

[MIRAKALES]

The security deposit is for the entire premises and the lease agreement initially signed by all three roommates. The landlord is responsible for return of the security deposit when the premises are completely vacated by all leased parties. If the premises are not completely vacated, then the tenants are responsible for the management of the security deposit division per their own agreements. In addition, in order to request a security deposit refund, the landlord would need to perform a "walk through" of the entire premises when vacant (not just one vacant room).

The landlord in providing a new lease agreement to the remaining two roommates only removed the one roommate from any further monthly rent obligation. However, the security deposit is for the premises and the one moving roommate is obligated for any damages committed during the lease agreement until the premises are completely vacated and available for a thorough inspection by the landlord. Settle the security deposit issues with the remaining two roommates as soon as possible, otherwise consider the security deposit forfeited because the remaining two roommates (or any new occupants) may not pay the rent at move-out or may commit damages which surpass the balance of the security on deposit.

 

[BL]

A RRR Certified letter is a letter you send to the landlord through the postal service for a fee Certified and when the Landlord signs for it you will get the return receipt that the landlord received it. Keep a copy of the letter also.

I disagree with the prior poster .

You lease/contracted ended with the landlord.

The remaining tenants stayed on with a new lease signing .

Request your portion returned to you and advise the Landlord to have the remaining/new lease tenants make up the difference .

It would be no different if entirely new tenants rented with a new lease/contract.

Advise the Landlord in the letter that you will expect your portion return to you within 7 days after the receipt of the certified letter or further legal litigation avenues will be pursued by you .

 

[justalayman]

The security deposit is for the entire premises and the lease agreement initially signed by all three roommates. The landlord is responsible for return of the security deposit when the premises are completely vacated by all leased parties. .

there is a new lease. Therefore all tenants are technically new tenants. If the LL failed to close out the prior lease, that is on him. OP is no longer a lessee and is due a return of the deposit from the prior lease.

Along with what BL said;


since California has a law that requires written notice be given the tenants within 21 days after the end of the lease, as to the disposition of the deposit. Anything retained must be accounted for and the remainder sent with the notice. I don't recall the penalty but pretty sure there is one. If you are willing to forego any penalty payments, I would simply include a statement such as:


per california law, a LL is required to provide notice of the disposition of the deposit and refund any unclaimed portion to the tenants within 21 days. If you would simply send me 1/3 of the total deposit paid when entering my lease, I will forego any legal action and not claim any penalty due due to the already late return of the deposit. My address is XXXXXXXXXXXXX.

If I am required to initiate legal action, I will seek any penalty available to me as well as legal expenses as allowed per California law as well as the return of the deposit.




See if that stirs him.

 

[FedUpRoommate]

I had started writing a letter to the LL, but I just didn't want to go down that avenue unless I was sure that he was the one responsible for paying back my deposit. It still worries me that I'm getting conflicting opinions regarding who is required to pay the deposit. But it just seems to me that since I paid the LL the deposit and he is the one that I have a contract with that he should be the one to pay me back. This is what I had written so far (using a website template):

Dear Mr. Landlord [I would have his real name here obviously]:

I am writing to request that you return my security deposit as required under Cal. Civ. Code §1950.5.

I vacated the premises at [old address] on May 31, 2012. Pursuant to Cal. Civ. Code §1950.5, you were required, by June 21, 2012, to refund my security deposit and/or provide an itemized statement listing any amounts you have withheld.

As of today, I have not received my security deposit or an itemized statement.

If you do not return my security deposit by July 5, 2012, I will proceed with a small claims action to recover the entire amount of my deposit.

You may also be responsible for damages up to two (2) times the amount of the security deposit for illegally withholding my security deposit. I retain the right to seek additional damages up to the amount allowed by law in a small claims proceeding.

If you wish to discuss this matter, I can be reached at the address and telephone listed below.

Sincerely,

FedUpRoommate

 

[FarmerJ]

FedUpRoommate Go for it , but honestly theres not alot to discuss
with this LL , that new lease with the others I too feel was the deal to trigger LL following the law and closing out your deposit and having the other 2 on the new lease bring up the diff. Your LL blew it by failing to deal with your deposit funds. (if it was me I wouldnt even wait until the 5th , if you send the letter out certified and give the LL say until the last friday of june and LL doesnt deal with it then If it was me Id be filing small claims court on the following monday.

 

[justalayman]

well, even if he isn't, what would the letter hurt? At most he would tell you to fly a kite, you sue and lose. On the up side, it stirs him and he sends you your money. Not really seeing a down side here.

 

[MIRAKALES]

Lease agreements generally do not entail how the rent or the security deposit is divided between co-tenants. Whether the co-tenants decide to divide the rent or the security deposit equally or unequally is independent of the lease agreement. Unless there is a separate co-tenant (roommate) agreement to the contrary, co-tenants are jointly and severally liable for the total rent and the total security deposit. This translates into if one roommate fails to pay the rent or the security deposit, each co-tenant is still responsible for full amount of the rent payment and security deposit.

California Courts
Return of Security Deposits - Roommate situations
http://www.courts.ca.gov/1049.htm
“Roommate situations are complicated. It is important that your rental agreement specifies each roommate’s rights and responsibilities. If only one roommate is moving out and the person moving out paid the deposit to another roommate, that roommate has to return the deposit. If the person moving out gave the deposit to the landlord, and the landlord has a separate rental agreement with the roommate moving out, the landlord returns the deposit. If, however, the roommates all signed one rental agreement for the unit and only one of the roommates moves out, the landlord does not have to return the security deposit until all the roommates have left.”

--------------------​

The landlord is under no obligation and is not able to determine which of the co-tenants paid what part, if any part, of the security deposit. The lease agreement and monthly rent payments and security deposit payment were one transaction for the premises being rented to the named co-tenants, collectively not individually.

The landlord received one security deposit for the entire premises without any regard to which tenant provided what portion to contribute to the entire security deposit. The landlord did not accept the security deposit in increments based upon a one-third partial payment from each of the three individual tenant occupants.

The landlord entered into a standard lease agreement with three adult occupants, each of whom is jointly and severally responsible for the lease agreement in its entirety:

• The landlord made no agreement to receive a partial security deposit payment or individual security deposit payments. (There is no record of separate transactions at lease agreement signing for payment of the rent or security deposit.)
• The landlord is under no obligation to refund a partial security deposit payment.
• The landlord did not enter into a roommate lease agreement with the three tenant occupants.