New Landlord Seeks Advice on Deposits
Robert S. Griswold | Steven R. Kellman | Ted Smith
This column on issues confronting renters and
landlords is written by Counselor of Real Estate and
Certified Property Manager Robert Griswold, host of Real
Estate Today! with Robert Griswold (10 a.m.
Saturdays on AM1130 - KSDO radio, or on the Internet
and by attorneys Steven R. Kellman, director of the
Tenants' Legal Center, and Ted Smith, principal in a law
firm representing landlords.
QUESTION: I am a new landlord and I own a small apartment building. How much should I collect from my prospective tenants for their security deposit? How much should I require for the cleaning deposit? Where can I purchase a copy of a lease or rental agreement and other forms that I will need?
ANSWER: Griswold: My advice is to get as large a security deposit as market conditions will allow subject to the legal limits. In California, the maximum security deposit is two times the monthly rental rate for unfurnished rentals or three times the monthly rental rate for furnished rentals. You can also get an additional half-month's rent (on top of the above amounts) as a security deposit if the tenant has a water bed.
The security deposit should cover everything and having a separate cleaning deposit has no advantages. Call all funds held the "security deposit" and you can use them for anything when the tenant vacates.
If you have a separate "cleaning deposit," then a tenant may leave the property clean but not pay rent and they could possibly raise a legal argument that the cleaning deposit must be returned when you would want to apply the "cleaning deposit" funds to the unpaid rent. While the larger the security deposit, the better -- the typical security deposit for a standard unfurnished apartment is one-half to a full month's rent. Also, note that security deposits are generally much higher for luxury apartments or single-family homes.
Of course, the security deposit is in addition to the first month's rent, which should be collected in full prior to the new tenant taking possession of the apartment.
If a tenant is killed not inside an apartment unit in a complex, but in the vicinity of the property (for example, the back alley ), is it required or a good idea to disclose it to a new tenant?
Smith: Like everything else in the law, it's a matter of degree. I start with the idea that California landlords are not automatically responsible for every unforeseeable criminal act committed by third parties in the neighborhood. There are no safety guarantees -- either of person or property -- while in possession of the rental.
In this case, the alleged murder was in the vicinity of the property. There is no statute which specifically mandates the disclosure of this to perspective residents. In a lawsuit, this fact could be brought out. Still, it appears to be an isolated event -- one that the landlord has no control over. There appears to be no reasonable likelihood that acts of this nature will definitely continue, especially on your property.
Unless the landlord has solid evidence of a specific nature that the threat will continue on the property, there is no legal duty to disclose under these facts.
Kellman: I agree with Ted that there is no law specifically requiring the landlord to disclose an unforeseen criminal act which occurred near the apartments, even one as serious as a murder. This could change, however, depending on the frequency and severity of further criminal acts.
If criminal activity continues on such a basis so as to lead a reasonable person to foresee that more crimes will occur, then a duty to disclose these known acts may be imposed on the landlord.
Further, the landlord may have more responsibility than simply to disclose crimes that have already happened. He or she may be required to take action to prevent the further occurrence of such crimes. This action could include improved lighting, security gates or personnel, and upgraded locks on the tenants' doors.
My husband and I recently moved out of a single-family home we had leased for three years. After we vacated, the landlord spent $800 to severely prune the landscaping in the front yard, and he's taking that amount out of our security deposit.
We paid last month's rent on time, had the house professionally cleaned when we left, had the lawn mowed and trimmed two days before we vacated. Six months before we moved, we spent $290 for a major trim and haul-away of backyard landscape growth.
The landlord claims we had an oral agreement to maintain the yard. The only agreement I remember is that, due to the poor condition of the grass and landscaping in the front yard, the landlord would be putting in entirely new landscaping. The work was never done because the owner thought the bids were too high.
My understanding of California rental law is that the landlord may only withhold the security deposit for back rent, damage or cleaning. It's hard for me to imagine that a growing oleander constitutes damage on my part! Should I pursue this in small claims court?
Griswold: While oral agreements can be binding, the owner's failure to put it in writing will hamper his efforts to make you responsible regardless of any oral discussion. Thus, it seems to me that you have a legitimate small-claims action for the return of the portion of your security deposit withheld for the major pruning.
The key factor in court will be the oral agreement regarding who is responsible for maintaining the landscaping and the extent of the maintenance expected. Typically, it is my experience that the owner is responsible for tree trimming and other major pruning unless otherwise agreed.
Requiring the tenant to handle weekly mowing and edging is one thing, but major trimming and pruning can be very dangerous and an inexperienced tenant could get hurt or destroy valuable trees or plants. For these reasons and many more, significant landscaping is typically the responsibility of the owner.
I would send the owner a demand letter giving him two weeks to
provide more information justifying the deductions or return the
amount of your security deposit improperly withheld. If the response
is not satisfactory, then go to small claims.
Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws. As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply. Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.
Revised and Updated - Wednesday, April 26, 2006
Robert S. Griswold, CRE, CPM, CCIM,
PCAM, GRI, ARM
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