April 23rd, 2023
April 23rd, 2023
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4.5 - 1 vote
Most tenants moving out of a rental property are interested in getting their security deposit as soon as possible, either to use the money to pay for a deposit for a new rental or to use as part of a down payment to buy a house or condo. Unfortunately, some landlords drag their feet and try to delay returning the security deposit for as long as they can get away with. Some landlords also try to wrongfully withhold some or all of the money from a deposit to which they are not entitled. This guide outlines the things a tenant needs to know to make sure they get their security money back in a timely manner.
Security deposit: A sum of money that a new tenant gives to their landlord or property manager that ensures the tenant will pay rent and follow the lease. The landlord holds this money, often in an escrow or savings account, and may not use this money for anything other than damages made to the apartment or unpaid rent after the tenant has moved out.
Most tenants don't spend time thinking about their security deposit until they are ready to move out of their rental. However, smart tenants plan ahead and take steps ahead of time that will help them get their deposit back on time and, as much as possible, in full.
For tenants with a month-to-month tenancy, they should give their landlord the legally-required notice to end their tenancy. The amount of notice varies from state to state but is usually 30 days. If tenants do not give the proper amount of notice, they may end up owing extra rent, which the landlord can deduct from the security deposit. Tenants can send a Termination of Tenancy Letter if they are breaking the lease early or a Notice of Intent to Vacate if they do not plan to renew their existing lease once it ends through certified mail, return receipt requested. This way, they will have evidence that proper notice was sent if they end up in small claims court fighting over the return of their deposit.
If a tenant is leaving before their lease ends, they should make their best effort to find another tenant to rent the unit. If they do not find someone to take over the lease and the landlord is not able to quickly re-rent the property, the tenant may end up owing rent until the end of the lease term. This could quickly use up the entirety of the security deposit.
In situations with multiple tenants on the lease but only one tenant leaving the property, the tenant who is leaving should try to negotiate with their co-tenants or the landlord for the early return of their share of the security deposit. Landlords have no legal duty to return the deposit until all co-tenants leave. So, the tenant who is leaving will have to try to work something out if they want their deposit back before their co-tenants move out as well.
Moving can be a hectic and chaotic process for tenants. That said, tenants should do their best to leave the property in as good condition as possible when they move out so that their landlord has no reason or excuse to deduct from their security deposit to pay for cleaning or to repair damages. The tenant should confirm their cleaning plans with the landlord so that they understand what their landlord expects to be done before they move out. They should try to get their rental in good shape, cleaning thoroughly and fixing any damages they may have caused.
When the tenant leaves, they should return all keys and remove all property, including garbage, food, and cleaning supplies. It is a good idea for the tenant to document their cleaning and repair work with photos and videos of the rental. Once the landlord inspects the property, the tenant can request to be present during this process. This way, the tenant will have the chance to do additional cleaning or repairs if necessary before the landlord deducts from the security deposit.
Finally, the tenant should provide the landlord with their forwarding address in writing. In many states, a landlord who cannot locate their former tenant within a specified period of time because they did not receive a forwarding address may keep the security deposit. The tenant can use a Tenant Security Deposit Return Request Letter to provide the landlord with their forwarding address, remind the landlord of the security deposit amount, and request the return of their deposit in a timely manner.
Most states hold landlords to strict guidelines as to when and how to return security deposits. Landlords who violate the laws may lose the deposit entirely or face hefty penalties. Every state's laws are different. Tenants should research their state's rules, since knowing security deposit limits and deadlines for returning deposits is crucial to making sure tenants get what they are owed.
For tenants who have paid a sum of money clearly labeled "last month's rent" before moving into a rental, they are allowed to use it to cover the last month's rent before they move out. However, the money that a tenant has paid that is called a "security deposit" may not necessarily be used for the last month of rent unless approved by the landlord. Many rental property owners will typically want to hold on to the whole deposit until the tenant moves out, in case they need to make repairs or do extensive cleaning. If the tenant uses a portion of their security deposit to cover the last month's rent, the landlord may not have sufficient funds to cover replacing items, making repairs, and cleaning the rental unit.
Most states set a deadline, usually between two and four weeks after the tenant moves out, for the landlord to mail the following:
State laws typically allow landlords to use deposits to cover:
The general rule is that the tenant is not responsible for paying to repair normal wear and tear. Ordinary wear and tear includes things such as minor marks or nicks on the walls, carpet worn thin by normal use, faded paint, curtains faded by the sun, and other damages that occur in the ordinary course of living. Further, the longer a tenant has lived in a place, the more wear and tear can be reasonably expected.
Once the landlord provides a list of itemized deductions from the security deposit, the tenant can review to make sure all of the deductions are valid. If the tenant is unhappy with the landlord's deductions, doesn't receive a thorough itemization of deductions, or believes the landlord broke state security deposit law in some other way, they can follow up with landlord to try to work something out before going to court. If the landlord and tenant come to an agreement, for example, if the landlord agrees to return some portion of the deposit if the tenant does additional cleaning, it should be put in writing and both parties should sign it. This agreement is a legal contract binding on the parties and if the landlord fails to honor it, the tenant has the option of taking them to small claims court to enforce the contract.
If negotiations fail, the tenant can write the landlord a Security Deposit Demand Letter asking for the return of the deposit. Many states require that a demand letter be sent before the tenant can sue in small claims court. So, if the tenant does not make a written demand for the return of the deposit, they risk losing their deposit altogether. Even for states where this step is not required by law, it can be useful to the tenant to motivate the landlord to act since it shows them that the tenant knows their rights and is willing to pursue legal action. The demand letter should include:
If the landlord does not respond by the deadline or the tenant is dissatisfied with their response, the tenant can file a lawsuit in small claims court, also known as the Justice of the Peace, Conciliation, Justice, City, or County court, depending on where the parties are located. The tenant may sue for the amount of the security deposit that the landlord wrongfully withheld and, if allowed by the state or city, for interest. Further, in many states, a tenant can also claim additional punitive damages, meant to punish a landlord for acting in bad faith. Each state has a different limit for small claims court, but the limits tend to range from $5,000 to $10,000. This information should be available on the local small claims court website. There is usually a small fee associated with filing in court. Having a lawyer is not a requirement and disputes typically go before a judge, without a jury, within a month or two. Prior to the hearing, the tenant should focus on gathering evidence, such as notice of intent to move out, photos of the rental unit when they left, and any demand letters that they sent.
Often, tenants do not know their rights when it comes to getting their security deposit back at the end of their rental agreement. These delays can stand in the way of a tenant having the funds to rent or purchase a new dwelling. By familiarizing themselves with the security deposit return process ahead of time, tenants can ensure that they get what they are owed.
About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.