Can I Sue My Landlord For Keeping My Security Deposit For Normal Wear And Tear?

Learn how to dispute a landlord's deposit deductions for ordinary wear and tear.

By , Attorney · UC Berkeley School of Law

A landlord has the right to use a tenant's security deposit to cover unpaid rent and the cost of repairing any damage to the rental. But what should you do when a landlord wrongly uses your security deposit as compensation for ordinary wear and tear? Read on to learn about ordinary wear and tear and dealing with a landlord who tries to charge you for it.

What Is a Security Deposit?

A security deposit is a sum of money separate from rent that a landlord collects at the beginning of a tenancy. The landlord is supposed to hold the security deposit and, at the end of the tenancy, use only however much of it covers repair costs for tenant-caused damage, unpaid rent, or both. If you were a tenant and neither damaged the rental nor owe any rent, your landlord must return your security deposit.

Many state laws (and some local ordinances) limit security deposit amounts; that limit is usually the equivalent of one or two months' rent. Often, security deposit laws also specify how and when landlords must return tenant deposits. For example, state law might say that a landlord has to provide whatever security-deposit refund is due within 30 days of the tenant moving out and include a full accounting of the reasons for any deductions.

What Is Ordinary Wear and Tear?

Landlords are supposed to be able to use security deposits for cleaning or repairs necessary to restore the rental unit more or less to its condition when the renter moved in. But there's a certain level of damage that happens when a place is inhabited over time, and the idea is that renters shouldn't have to pay for that—meaning that landlords may use security deposits for cleaning or repair that goes beyond ordinary wear and tear.

In general, ordinary wear and tear is deterioration or damage that happens as a result of tenants living in and using a rental in a reasonable manner. Examples are a few worn spots on carpet and dusty mini blinds.

The longer someone has lived in an apartment, the more wear and tear the landlord should expect—even assuming the tenant has taken reasonable care of the place. Carpets, floors, and walls, for example, are going to show signs of habitation after five years. Also, a landlord can't charge for a condition the renter inherited—if, for instance, the bathtub and stove in your apartment were dirty and stained when you moved in, your landlord may not use your deposit for a professional cleaning crew to make them sparkle after you move out.

On the other hand, if your dog stained the living room carpet, you broke a hanging light fixture, or you left a now-filthy bathtub or stove top, you can expect the landlord to deduct the cost to clean and repair these items before returning your deposit.

Avoiding Disputes Over Wear and Tear

If you haven't yet moved into a new place, before doing so, ask about your landlord's cleaning standards. Assuming that the standards are reasonable, try to follow them before moving out. If you've cleaned thoroughly and haven't broken or significantly damaged anything, your landlord should return your deposit in full.

Also, at the point of moving in, try to document the condition of the rental. Do the same at move-out time. Written notes (such as a dated checklist describing rooms in and features of the rental), photos, and videos are all good ways to create a record in the event that you and your landlord disagree about what the unit used to or now looks like. Often, just showing the landlord photos and notes is enough to head off any dispute. If you have to sue to get your security deposit back, though, your records could be valuable evidence to support your case.

If Your Landlord Charges You for Ordinary Wear and Tear

So how do you get your security deposit back when your landlord uses it to cover ordinary wear and tear in the rental? Start by contacting the landlord and discussing the problem. If you first contacted the landlord by phone or in person and aren't satisfied with the response, put your concerns in writing. Include your documentation of the unit's condition—for example, any notes, checklists, and photos from move-in. Also, in your written communication, give the landlord a deadline for returning your full security deposit. Be sure to include your mailing address or other payment information so that the landlord can easily get you the money.

If it's clear you're not going to reach a resolution, you might want to sue your landlord. Suing in small claims court is likely your best option if the amount you're arguing about isn't more than your court's limit on the amount of money at stake. Small claims cases involve low filing fees, don't require lawyers, and move quickly. Although in many states you can't bring an attorney with you to small claims court, you can always meet with one ahead of time. You can consult a local landlord-tenant lawyer to discuss your case's strengths and weaknesses and get advice on how to file your case, present your case in court, and, if necessary, follow up to collect any money the court awards you.

If you'd like to file in small claims court, but the amount you're seeking is too high, you can waive your right to any payments over the court's limit. However, if you're arguing over a sum that's significantly more than the small claims limit, hiring an attorney before you make any decisions on how to proceed might be your best option.

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