Security Deposits: FAQ

A landlord will usually ask for a security deposit (also known as a damage deposit) at the time that a lease or rental agreement is signed. In residential tenancies, the amount of the security deposit is usually equal to one or two months’ rent and protects the landlord’s rental property through to the end of the lease.

The security deposit is held by the landlord in trust during the term of the lease. Even if the rental property is transferred to a new owner while the tenant continues occupancy, the new owner has a duty to continue safeguarding the security deposit until the end of the lease.

Under landlord-tenant laws, the landlord’s use of the security deposit is limited to the cost of repairs and other expenses that result from a tenant’s violation of the lease or the law. However, certain types of damage caused by a tenant might not be enough to justify deductions. For example, damage that amounts to ordinary or normal wear and tear is not always enough of an excuse for a landlord to take money out of the tenant’s security deposit.

What Is Normal Wear and Tear?

While there is no universal definition for wear and tear across different jurisdictions, it can be generally understood to refer to unavoidable damage that results from normal use of the rental premises. For example, common and regular use of a rental home can cause everyday aging of the premises, such as:

• Worn carpets or floors
• Fading paint or loose wallpaper
• Small scratches on walls and doors
• Loosened windows or door knobs
• Old caulking, faded curtains, and worn blind strings

Expected wear-down can also occur over time as a result of the natural environment. For example, rain, wind, dust, and inclement weather can cause a property to age naturally no matter how hard a tenant works to take care of the rental premises.

Can My Landlord Keep a Portion of My Security Deposit for Ordinary Wear and Tear?

The law will not allow a landlord to deduct for ordinary wear even if the lease agreement says the landlord can use the security deposit for that purpose. However, sometimes it’s difficult to tell what amounts to “ordinary wear and tear” and what kind of damage goes beyond normal wear.

If a tenant is careless about taking care of the property, what may have otherwise seemed like ordinary wear and tear might be the result of abuse or negligence by the tenant. While exposure to rain over time might justifiably cause wear and tear to a property in a manner that is outside a tenant’s control, the story might be different if the water damage was caused by the tenant’s bad behavior.

For example, a heavy pouring of rain might weaken the roof of a property over time. A careless tenant might see that the ceiling is slightly leaking but fail to report the leaks to the landlord. Over months or years, the small drops of water that occasionally fell to the floors on rainy days might cause damage to the walls, floors, and carpets.

Here, a landlord may have a strong argument that stains or cracks on the walls should not be treated as ordinary wear and tear because the tenant failed to take reasonable action to report the leaks to the landlord in a timely way. If the damage to the property is significant enough to require extensive repairs, the landlord might be well within their right to deduct a large portion of the tenant’s security deposit to pay for the expenses.

More obvious examples of negligence by a tenant include banged-up and dented walls, damage to plumbing as a result of flushing inappropriate items into the drains, or excessive amounts of dirt buildup caused by a tenant who hoards trash.

Can My Landlord Keep My Entire Security Deposit?

In some circumstances, a landlord can justify taking the entire amount of the security deposit. Deductions may usually only be made for:

• Damage to the property
• Nonpayment of rent
• Costs to repair or replace damaged appliances or fixtures
• Cleaning fees (post-occupancy)
• Eviction/legal costs (if eviction is justified)

A security deposit is not a substitute for the tenant’s last month’s rent obligation, and renters must continue paying rent month-to-month until they have vacated the premises. A landlord is allowed to look to the security deposit to cover unpaid rent after following proper procedure, including giving the tenant a three-day notice to pay rent in states like New York and California.

When Must a Landlord Return a Tenant’s Security Deposit?

In most states, security deposit laws require that a landlord provide a written statement with detailed information of accounting, including any itemized deductions, that explain the cost of repairs incurred by the landlord. State law typically requires that the landlord return the tenant’s security deposit within around one month after the tenant has moved out.

For example, while the law provides for 21 days in California, Washington, D.C. is a bit more lax and gives landlords 45 days to return a tenant’s damage deposit and provide a list of itemized deductions. In New York, however, that time limit has been reduced to just 14 days.

Upon vacating the rental unit, a tenant can provide a written notice with a forwarding address to remind the landlord to mail the refund check after the end of the rental period or occupancy.

What if My Landlord Is Refusing To Give My Security Deposit Back?

Unless the landlord has good cause for withholding all or a portion of your deposit, you may be protected by tenants’ rights that protect you from a landlord’s refusal to return your money.

Sometimes getting back your deposit is just a matter of providing your landlord with a warning that you will seek legal action unless your deposit is returned. Many small claims court systems provide self-help resources to tenants, including frequently asked questions (FAQs) for lawsuit filings. However, in more complex cases, tenants should seek the legal advice of an experienced legal professional who can file a complaint in court against a landlord who refuses to cooperate.

Available Remedies

If a tenant can prove that their landlord has violated the law, a court can award remedies (damages) to make the tenant whole. Therefore, if your landlord has illegally withheld your security deposit, your attorney may be able to help you recover:

• The full amount of your deposit plus interest
• Your court costs and attorney fees
• Punitive damages (to punish the landlord’s bad faith behavior)

For example, in California, a tenant can ask for treble damages (three times the amount of their damages) as a result of a landlord’s bad faith retention of a security deposit. Similarly, if a landlord’s refusal to return a tenant’s money is found to be willful in New York, a court may award the tenant punitive damages equal to twice the value of the security deposit.

If you have any other questions about security deposits, a real estate attorney can help. A real estate lawyer can help you understand your rights and help you get your money back if your landlord is illegally refusing a return of the security deposit.