My most frequent repeat questions come from students with landlord and roommate problems. Surprise, surprise. Although I’ve covered it before, it’s worth repeating now that a new year is well underway: Security deposits must be returned to you within 21 days of moving out, or else the landlord owes you a triple refund.
Question: My lease ended on Jan. 1. My landlord is refusing to return my security deposit. He says I need to collect it from the new tenant who’s replacing me. I don’t want to have to deal with whoever the new person is. Can the landlord make me do this?
— Various students, Everywhere.
Answer: No, your landlord can’t make you chase after the new tenants for the security deposit.
Within 21 days of you vacating the apartment, the landlord must refund your security deposit. If he doesn’t, or he refunds only part of it, he has to tell you why he did that. He needs to mail or personally hand to you an itemized list of the amounts of any deductions and the reasons for the deductions. He should also include copies of documents showing the charges incurred to clean or repair the apartment.
This list of deductions must be reasonable. He can’t just deduct for anything he wants.
Before you move out, you’re supposed to restore the apartment to the same level of cleanliness as it was in at the time you first moved in. Does the landlord want to steam clean the whole place? He can’t charge you for that, unless steam-cleaning is indeed necessary to return it to the previous level of cleanliness. Ordinary wear and tear is to be expected, and landlords cannot deduct money for “damage” that occurred due to ordinary use.
Some landlords automatically keep about $80 of the security deposit for unspecified “cleaning” fees. But cleaning is not always necessary, and they cannot deduct money for unnecessary expenses.
The portion of the security deposit that wasn’t necessary to return the apartment to its original condition must be returned to you by the landlord.
Back to your question. The landlord cannot tell you to recover your security deposit from the new tenant.
Why?
Because you don’t have a contract with the new tenant. You’ve probably never met the new tenant. The new tenant has no idea how clean the apartment was when you first moved in, so he has no way of refunding you the correct amount.
You have a contract with your landlord. That means that if something goes wrong with that contract, you can sue only the landlord.
The law requires the landlord to hang onto that security deposit during the entire time you live there. California Civil Code Section 1950.5(D) states that any security deposit “shall be held by the landlord for the tenant who is party to the lease or agreement.”
Get your refund from the landlord, not the new tenant. He’s the one with the security deposit, so he’s the one who should give you the refund. A landlord who withholds your deposit in bad faith is liable for triple damages plus your attorney fees.
If you try to get your deposit back, do not start with a lawsuit; start with a letter to the landlord. You can find template demand letters using Google. For more detailed information, there’s a California Tenants Handbook published periodically by the State Department of Consumer Affairs. The latest edition is available at www.dca.ca.gov/publications/landlordbook/catenant.pdf.
Speaking of questions I keep getting but covered but keep coming up …
Question: In student government elections, slates/parties are too powerful. Can ASUCD just ban slates? Does that violate any law or the Constitution? Is ASUCD even subject to the Constitution?
Answer: ASUCD cannot ban groups of candidates from running together under a common name. Nor can ASUCD restrict the number of candidates who run together, or whose endorsements they can use in their campaigns. Bans like these would violate a candidate’s right to free association under the First Amendment, which applies to student governments in public universities.
Courts treat student government elections as a limited public forum, in which the First Amendment applies, but with reservations. A rule restricting speech in such a forum will be upheld only if the government has legitimate interests in restricting the use of a forum to certain intended purposes that outweigh a speaker’s interest in using the forum for a different purpose. A judge would consider whether any restriction on speech is viewpoint neutral or reasonable in light of the purposes of the forum.
ASUCD isn’t nearly as bad as the student government of my undergrad alma mater, UC San Diego. There, the A.S. Council recently restricted the number of candidates who can run together under the same platform. They also banned candidates from jointly campaigning unless they all file paperwork with the elections committee. That’s pretty clearly unconstitutional, since the only conceivable purpose of such limits is to restrict the most popular candidates, those with lots of friends and supporters, from winning elections. No other purpose is served.
That does not mean that ASUCD’s bylaws are in the clear. This section, for example, is probably unconstitutional and unenforceable:
“A copy of the written list of [a candidate’s] supporters must be filed with the ASUCD Elections Committee one academic day prior to the [candidate’s] use of the endorsement.”
It is unlikely that a judge would uphold this, because its blanket restriction is unreasonable. Imagine the consequences: After a club holds its endorsement meeting on the Friday before a three-day weekend, the candidate cannot tell anyone that the club endorsed him until the following Tuesday. What reasonable purpose is served by this four-day waiting period? The club could announce its endorsement on Friday, but if the candidate’s roommate asks him about the endorsement on Saturday, he would have to stay mute or else risk disqualification. That’s nuts — or, in legal terms, unreasonable.
It’s great that UC Davis’ election bylaws are more free and fair than UC San Diego’s, but clauses like this are still a problem. Any candidate afraid of disqualification under this provision could file a lawsuit in federal court before the election even begins. Lawsuits are expensive, and ASUCD would do well to revise the bylaws before some ambitious political science student tries to test them in court.
Daniel is a Sacramento attorney, former Davis City Council candidate and graduate of UC Davis School of Law. He’ll answer questions sent to him at governorwatts@gmail.com or tweeted to @governorwatts.
