One way to define “security deposit” would be to refer to it by another common name, which is a damage deposit. It is some amount of money that a tenant must pay to a landlord at the beginning of their lease. The intended purpose of such a payment is to protect the landlord should the tenant default, or if at the conclusion of the lease there is property damage that must be repaired. If the amount of repairs does not require the entirety of the security deposit, the remaining amount is to be returned to the renter.
Requiring a security deposit is a standard practice under landlord and tenant laws, and every state allows landlords to collect this deposit when a tenant moves into their rental unit. A security deposit should not be used to make repairs that result from “normal wear and tear” to the unit, as this is considered to be one of the costs of doing business. It may cover the cost of cleaning the unit when the tenant moves out; however, this should only be to make the unit as clean as it was when the tenant first moved into the unit. In general, a security deposit is meant to force the tenant to pay rent on time and maintain the property.
In terms of how much a landlord can collect for a security deposit, many states limit the amount that may be collected. Generally speaking, most states allow landlords to collect an amount that is equal to one or two months of rent.
How Long Does a Landlord Have to Return Your Security Deposit? What If My Landlord Doesn’t Return My Security Deposit?
Once all repairs are made beyond “normal wear and tear,” the landlord must return any unused portion of the security deposit to the tenant. This is to be included with an itemized statement of deductions. What this means is that the landlord must account for all of the deductions made from the security deposit. This is done to ensure that the landlord is not arbitrarily deducting from the deposit and keeping money that does not lawfully belong to them.
The tenant’s security deposit must be returned within a specific amount of time, generally between 14 to 30 days. In Arizona, the landlord must return the security deposit within 14 days after the tenant has moved out. California, however, gives landlords a total of 21 days in which to return the tenant’s security deposit. New York law states that a landlord must return the tenant’s security deposit within a “reasonable time” once the tenant has both vacated the premises and returned the keys to the rental unit. A “reasonable” amount of time is generally considered to be between 21 and 45 days.
It is important to note that not all states have a time limit for the return of a security deposit. That is why it is recommended that you speak with a lawyer to discuss the security deposit laws of your state, if you find yourself questioning how long your landlord has to return your security deposit.
If your landlord fails to return your security deposit, or if they do not give you a written account of why they are withholding your security deposit, it could be possible to sue them in order to recover it. Most states maintain statutes allowing a tenant to sue a landlord under these circumstances. Such statutes are referred to as Wrongful Withholding of Security Deposit, or Wrongful Retention of Security Deposit. Under these statutes, you may be able to sue your landlord when you move out for the security deposit that you are owed.
In terms of landlord withholding deposit amounts, the amount that is being withheld from the security deposit must be reasonable for the damage being claimed. There are many considerations in calculating the cost of replacement and determining what is reasonable. An example of this would be how a tenant should only pay for the remaining life of a product, such as a carpet. If a carpet has a life expectancy of five years, and the carpet is damaged beyond repair in the fourth year, the tenant may lawfully be charged for 1/5th the cost of replacement.
It is important to note what cannot be withheld by a landlord. A landlord cannot withhold a portion of the security deposit in order to repair any damage that was noted when the tenant moved into the rental unit. As previously mentioned, they may not withhold for normal wear and tear. What constitutes “normal wear and tear” can vary, but in general, this would include:
- Worn carpet;
- Scuffed or faded paint;
- Warped doors; and
- Pin holes in the wall.
The consequences for a landlord withholding deposit amounts will be discussed below, as it relates to how much you may be able to recover should you file a lawsuit against them.
How Much of My Security Deposit Can I Recover?
When suing a landlord for a security deposit, your recovery will generally consist of two or three times that amount of money that has been wrongfully withheld. It is imperative to note that each state differs in terms of how much a tenant may recover. Some states also allow the tenant to recover any penalties, damages, and/or attorney’s fees associated with the dispute.
An example of this would be if Tenant A vacated their apartment. Landlord B was holding Tenant A’s security deposit, which amounted to $1,000. If Tenant A caused an estimated $200 worth of damage to the rental unit, they are to receive $800 back from Landlord B. Should Landlord B refuse to give back the $800, Tenant A may have grounds to sue for wrongful withholding of a security deposit. Should they do so, they could potentially receive $1,600, $2,400, or more from Landlord B, depending on the state in which they rented.
Are There Any Defenses?
Landlords do have some legal defenses to withholding security deposit amounts, although the defenses available will differ from state to state. The first common defense would be a good-faith reason for withholding the security deposit. An example of a good-faith reason would be that the landlord is still in the process of calculating the cost of repairs of the property, and believes a portion of the security deposit may be necessary to cover repairs. Another good-faith reason may be that they wanted to confirm the mailing address for the security deposit check.
Another defense may be that the landlord was not acting wilfully when withholding the deposit. An example of this would be the check simply being lost in the office. Thus, if the landlord did not know the check was being withheld, and promptly rights the mistake, such as by reissuing the security deposit check to the tenant, then the landlord may have a legal defense to the additional penalties.
In some states, the landlord may be able to assert as defense that the tenant failed to provide written notice to the landlord regarding their intent to sue for the wrongful withholding of their security deposit. A security deposit lawyer can help determine if your state will allow such a defense.
Do I Need an Attorney for Cases Involving Wrongful Withholding of a Security Deposit?
You should consider hiring a landlord and tenant attorney for security deposit issues, such as cases involving wrongful withholding of a security deposit. An experienced local landlord and tenant attorney can help you understand your state’s laws regarding the wrongful withholding of a security deposit, and what your best course of legal action would be. Finally, an attorney will also be able to represent you in court, as needed.
If you are the plaintiff, an attorney can help you recover your security deposit, along with a reasonable amount of damages suffered. If you are the defendant, an attorney can help determine whether there are any legal defenses available to you, based on the specific facts of the case.