Simone & Blevins

Tag: security deposit

  • 2019 Late Fee Provision & Pets

    Q: This is my first time renting out my residential unit. The late fee provision in my Lease allows me to charge a percentage of the rent or a flat fee. How much can I charge for the late fee?

    A: Your late fee should be no more than 6% of the monthly rent. For example, if your tenant pays $1,250 in rent per month, then you may charge up to 6% of $1,250 as a late fee, which is $75. Your Lease also gives you the option to write in a flat fee, however, the late fee will usually be considered excessive if it is over 6% of the monthly rent.

    Q: I have a tenant who pays the rent late but refuses to pay the late fees. Can I give them a 3 Day Notice to Pay Rent or Quit for the late fee?

                A: No, you cannot include late fees on a 3 Day Notice to Pay Rent or Quit. If the late fee is a covenant in your Lease or Rental Agreement, then you may give the tenant a 3 Day Notice to Perform Covenant or Quit to pay the late fees. If the tenant does not pay after the 3 Day Notice to Perform Covenant or Quit, then you may start an eviction based on this notice. You also have the option of taking the tenant to small claims court to be awarded the late fees.

    Q: My tenant paid half of the security deposit before moving and was supposed to pay the other half last month. I still have not received the full security deposit. What can I do?

                A:  If the security deposit is a covenant in your Lease or Rental Agreement, then you may give the tenant a 3 Day Notice to Perform Covenant or Quit to pay the remainder of the deposit. You may also consider giving the tenant a 30 Day Notice to Quit if they are in a Month-to-Month tenancy to terminate the tenancy. It is in the Landlord’s best interest to collect the full security deposit before giving a new tenant possession of the property.

    Q: I am a landlord and my tenant wants to get a dog. I told them it was okay if they pay me a deposit in case the dog damages the property. Can I make the pet deposit non-refundable and can I charge more than 2 months rent?

                A: No, a deposit must be refundable. For an unfurnished unit, you may request an additional security deposit up to twice the monthly rent. Do not separate the security deposit and the pet deposit. A security deposit can be used towards any damages and cleaning costs. However, a pet deposit may only be used toward damages and cleaning caused by a pet. It may be difficult to identify the difference between the damages from a pet and puts you at greater risk to be sued for wrongfully deducting from the Security Deposit or Pet Deposit.

    Q: Can I charge my tenant a pet deposit or an extra high deposit if they have an emotion support animal?

    A: No. Emotional support animals are not considered pets, so you cannot charge the tenant the same fees you would charge a tenant with a pet. Further, a request for accommodation of emotional support animals may not be unreasonably denied or conditioned on payment of a fee, deposit, or other terms and conditions applied to applicants.

  • 2019 Small Claims

    Q: What can I do if my tenant still owes me money after I applied the security deposit to the outstanding balance for unpaid rent and necessary costs to clean and repair the rental unit?

    A.  First, you will need to fill out a security deposit itemization for back rent, cleaning costs, and damage beyond normal wear and tear. Deduct the security deposit from the amount owed, then request the tenant pay you the remaining sum due. You are required to mail the itemization and receipts for materials and labor within 21 days of the tenant vacating. Second, if the tenant fails to pay for the balance not covered by the security deposit, then you may file an action against the tenant to recover the outstanding sum. You can do this in small claims court.  You will need to know where the tenant lives or works to serve him or her with the lawsuit.

    Q.        I forgot to send the security deposit itemization within 21 days of the tenant vacating. Can the tenant sue me for more than just the security deposit amount?

    A.Yes, if the security deposit is mishandled in bad faith, then the tenant may be entitled to up to three times the security deposit. However, if the tenant sues you in small claims court, then the total amount cannot exceed $10,000 as this is the jurisdictional limit in small claims court.  To request sums more than $10,000, the tenant would have to sue you in Superior Court.

    Q.        I am a landlord and my tenants vacated two weeks ago. There is so much damage to the property that I will not be able to produce a full Security Deposit Itemization and receipts within 21 days of the tenant vacating. Can I wait until the repairs are done to send the Security Deposit Itemization? What can I do to collect money for all of the damages?

    A.If there is extensive damage to the unit that exceeds normal wear and tear, then the landlord is required to send an estimated security deposit itemization within 21 days of the tenant vacating. Once the work is completed, the landlord must send an updated security deposit itemization, including all receipts and invoices supporting the charges, within 14 days.  If the tenant still owes you money after applying the security deposit, you may file an action in small claims court.  In small claims court, you will need to prove the extent of the damages and provide evidence to the judge including, if avilable, photos, a copy of the lease/rental agreement, move-in/move-out checklist, and copies of all receipts and invoices. You should organize these items into a packet for yourself, the tenant, and the judge. Additionally, you may want to submit a short trial brief to the judge to lay out your position and damages.

    Q.        I followed California Civil Code §1950.5 and sent a security deposit itemization with receipts to my tenant within 21 Days of them vacating. My tenant sued me in small claims court for their security deposit, but they owe me for over $10,000 worth of damages and unpaid rent. What can I do to get the judge to award me the money the tenant owes?

    A. You will need to file a counterclaim. In your counterclaim, you may request damages up to $10,000. Once you file your claim you will need to attend your hearing and present your case to the judge. If you win at your small claims trial, then the judge may award you a judgment for the money the tenant owes you. If you want to sue the tenant for more than $10,000, then you will need to file an action in Superior Court.

    Q. I went to small claims court because my tenant sued me for the return of their security deposit. The judge ruled that I did not have enough evidence or receipts and awarded the tenant the full security deposit plus attorney’s fees. Can I appeal this case? If so, how long do I have to appeal it?

    A. You may appeal your small claims case within 30 days after the date the Notice of Entry of Judgment was mailed to you by the court clerk. The case will be heard again without consideration of the previous ruling. In the appeal, you and your tenant may be represented by an attorney. If you do retain an attorney, you should try to settle the case one last time. Settling the matter, will take the expense and risk out of having to go to trial again.

  • 2019 Roommates

    Q:  My tenant is requesting to add a roommate to her lease. Do I have to allow my tenant to have a roommate?

    A: It depends on the terms of your lease. As a landlord, you may include a clause in your lease or rental agreement that authorizes or prohibits your tenant from having a roommate. If you allow your tenant to have a roommate, you should screen the potential roommate as you would any other applicant. If the prospective roommate does not qualify, then you may deny their application. If the prospective roommate qualifies, then you may request your existing tenant and the new tenant sign an addendum to your lease to add the new tenant or execute a new lease/rental agreement.  Either option will ensure that the new tenant has the same rights and obligations as the original tenant.

    Q: I’m a Landlord and have 3 tenants on one rental agreement in my unit. The tenants paid me one security deposit. One of the tenants is moving and wants his portion of the security deposit back. Do I have to return a portion of the deposit to the tenant?

    A: No, you are not required to return the security deposit until all tenants under the same rental agreement have vacated the premises.  However, if you assigned the security deposit amounts individually on the rental agreement, then you would be required to return the tenant’s portion of the security deposit when he vacates.

    Q: My tenant has always had a lot of roommates to help him pay the rent. I allow him to sublet to 2 people at a time. He stopped paying the rent 2 months ago and now one of the roommates told me the original tenant moved out. What do I do?

    A: The original tenant that moved did not give you possession of the property and you are still entitled to rent. You may serve the tenant with a three day notice to pay rent or quit and begin the eviction process as soon as possible. If you know the subtenants’ names, then include them on the notice. You may also try to make an agreement with the subtenants to move or enter into a new rental agreement and pay you the rent that is owed.

    Q: I am a landlord and have a unit rented to one tenant. My tenant got a roommate and signed a sublease with them. Now, my tenant wants my help to evict the subtenant. Do I need to file the eviction?

    A: No, your tenant must evict the subtenant. When a tenant subleases a property, they are acting as landlord to the subtenant and are required to file the eviction. If the tenant is breaking your lease by having a subtenant or is breaching the lease in any other way, then you may evict both the tenant and subtenant. If you allowed the tenant to sublet the premises, then you may encourage your tenant to seek legal assistance with the matter. 

    Q: I rent an apartment to two tenants. One of the tenants is moving and the other tenant is getting a new roommate. Do I have to sign a new rental agreement with the new tenant?

    A: No, you are not required to sign a new rental agreement with the new tenant. However, it is a good idea to either execute a new rental agreement or complete an addendum to the current rental agreement. The addendum should release the tenant that is moving and bind the new tenant to the existing contract.

  • 2019 Illegal Late Fee

    Q: I rent a residential unit to a tenant on an oral agreement. The rent is due on the 1st of every month. The tenant keeps paying late and I want to charge him late fees. Can I do this?

    A: No, you cannot charge a late fee without a proper late fee provision in a written lease or rental agreement. A late fee provision may be used in a residential lease when it would be impracticable or extremely difficult to fix the actual damages incurred by the landlord.  The landlord and tenant must agree that the amount charged bears a reasonable relationship to the actual costs and damages that the landlord will incur from the late payment.  Without a proper late fee provision, you cannot enforce a late fee on your tenant.

    Q: This is my first time renting out my residential unit and I am filling out the proposed lease. There is a late fee provision in the lease that allows me to charge a percentage of the rent or a flat fee. How much can I charge for the late fee?

    A: It depends. A general rule is that your late fee should be no more than 6% of the monthly rent. For example, if your tenant pays $1,250 in rent per month, then you may charge up to 6% of $1,250, which is a $75 late fee. Your Lease also gives you the option to write in a flat fee, however, the late fee will be considered excessive if it is over 6% of the monthly rent.  Remember, the landlord and tenant must agree that the amount charged bears a reasonable relationship to the actual costs and damages that the landlord will incur from the late payment.

    Q: I have a residential tenant that pays late every month. He pays the late fee as required by the lease, but I want to raise the amount of the late fee to 10% to punish the tenant and encourage him to pay on time. The tenant has agreed to pay the higher late fee. Can I do this?

    A: No, a late fee is not a punishment. A late fee is used to estimate the damages that are incurred by the landlord from late payment of rent. Even if the tenant agrees to the 10% late fee, this is considered excessive and is an illegal late fee provision. If the tenant pays too much for late fees, the landlord may have to credit the tenant back a portion of the late fee or the entire amount.

    Q: The late fee provision in my lease states that if the tenant fails to pay rent by the 5th day after the rent is due then the tenant will incur a late fee. Do I charge the late fee on the 5th?

    A: It depends. The wording of the late fee provision is very important. If the rent is due on the first and the late fee provision states the late fee is incurred if rent is not received 5 days after the due date, then five days after the 1st would fall on the 6th. Therefore, the tenant would have until the 6th to pay without incurring a late fee and the late fee should be charged on the 7th. If your late fee provision states that a late fee will be incurred if the rent is not received by the 3rd day of the month, then you may charge the late fee on the 4th. If you believe you have charged your tenant the late fee too early, then you will need to review your ledger and reimburse or credit the tenant for the prematurely charged late fee.

    Q: I have a tenant who pays the rent late but refuses to pay the late fees. Can I give them a 3 Day Notice to Pay Rent or Quit for the late fee?

                A: No, you cannot include late fees on a 3 Day Notice to Pay Rent or Quit.  You must have a properly drafted late fee provision in your lease or rental agreement in order to charge the tenant late fees. If you have a proper late fee provision, then you may give the tenant a 3 Day Notice to Perform Covenant or Quit to pay the late fees. If the tenant does not pay after the 3 Day Notice to Perform Covenant or Quit, then you may have the option to file an eviction based on this notice, however, you should speak to an attorney before pursuing the eviction. You also have the option of taking the tenant to small claims court to be awarded the late fees. Given this tenant’s payment history, you may want to give them a notice to vacate. You should consult with an attorney’s office for lease review and further termination options.

    Q: My tenants just moved out and they still owe me for 3 months of late fees. Can I deduct the late fees from the security deposit?          

       A: No, you cannot deduct late fees from the security deposit. The security deposit may be used for back rent, cleaning costs, and damages only. You may pursue the late fee charges in small claims court. It is good practice for the landlord to serve a 3 Day Notice to perform covenant or quit each time a late fee is due and unpaid.