Landlord must allow tenant to correct defects before vacating

Question: I rented my town house for several years to the same tenant. At the beginning of this year, she gave notice that she was vacating. I knew I was required to deal with the security deposit I was holding for her, so I offered her a joint inspection on the day she vacated, which she accepted. When we looked at the house, I saw that the carpets had not been cleaned and that there were holes in the walls, probably from pictures being hung. I decided to return half the deposit and kept the rest to compensate for the cost of cleaning and repairing the halls. I sent her an explanation within the 21-day period required by the security deposit statute, and I provided her with receipts to justify the costs. I thought I had done everything correctly, but now I have a letter from her threatening to sue me in Small Claims Court because we didn’t have a walk-through before she vacated. Did I do anything wrong?

Answer: It sounds like your former tenant is asserting that you violated the pre-departure inspection requirements outlined in California Civil Code Section 1950.5(f). This procedure was added to the security deposit statute eight years ago. Its purpose was to give tenants an opportunity to preserve their security deposits by correcting faulty conditions before they vacate.

Although it is also a good idea to have a joint inspection at the time of move-out, by that date the tenant no longer has an opportunity to make repairs or carry out additional cleaning. The pre-departure rules required you to give your tenant written notification of her right to a joint pre-departure inspection about two weeks before the date she vacated. Unless the tenant waived the right to this inspection, you should have scheduled a mutually convenient date, or given 48 hours’ written notice of the date for the inspection, which you should have conducted regardless of whether the tenant was present.

At the conclusion of the inspection, you were required to give the tenant a written itemization of every defect that you were going to charge against the deposit, such as unclean carpets and holes in the wall. You were also required to give the tenant a copy of the actual language from Section 1950.5(f)(1) through (4), so that the tenant would know the exact procedures and understand her right to correct the defects before vacating. The only exceptions to your duty to list all potential deductions would have been hidden damage, such as a hole in the carpet covered by a sofa, or subsequent damage such as a hole in the wall later made by the movers.

The pre-departure rules do not apply to an eviction or some other departure not resulting from a normal termination of the tenancy.

Since you didn’t comply with this procedure, your tenant has the right to argue in Small Claims Court that she could have fixed the deficiencies if she had been advised her security deposit was in danger. Rather than face the uncertainty of court, as well as the investment in time and energy, you might contact your local community mediation program to pursue a mediated settlement.

Eichner is director of Housing Counseling Programs for Project Sentinel, a nonprofit agency providing tenant-landlord and fair housing counseling in four Bay Area counties. To submit a question, contact info@housing.org.