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1 [Letterhead] Vince B. [address] [Date] Dear Mr. B., On April 26, 2008, my client, Mark G., along with his three roommates (David D., Brian L. and Adam M.), hereinafter tenants, executed a one-year residential lease for your single family home located at 1987 Jenna Circle in Corona. The tenants paid a $2,000 security deposit. After living there for over two years, the tenants terminated the lease and vacated the premises. You thereafter presented them with a final statement indicating that you spent the entire $2,000 security deposit plus an additional $3,460 to clean and repair the premises after they vacated. Your final statement itemized the following cleaning and repairs: Carpet Cleaning $ Interior Cleaning $ Trash Removal $ Broken Window $ Replace Screen Door $ Interior Paint $1, Interior Carpet $2, Drywall Repair $ Dispose automobile battery $ The statement also noted that [c]arpet cleaning with deodorizer to eliminate pet odors, did not remove smell so carpet and pad had to be replaced. Screen door replaced and drywall repaired due to pet damage, lease excluded pets, interior was left excessively dirty and extensive trash and hazardous waste left in house and garage and backyard. According to my client, the tenants shampooed the carpets thoroughly prior to vacating leaving the carpet was spotless and they reported that it had no odor. The tenants acknowledged that they did had a dog who was almost full-grown and fully housebroken. They acquired the 1

2 dog approximately two months before they moved out; the dog stayed mostly outside and was never inside alone. According to the tenants, the dog never defecated or urinated in the house. All tenants reported that the carpet was in good shape at move-in and it looked just as good when they moved out. I have noted that the lease the tenants signed obligated the tenants to have the carpets professionally cleaned upon move-out. The tenants told me that they cleaned the house, inside and out. They report that it was spic and span and that they cleaned every inch including baseboards, blinds and walls. They told me that they did leave quite a bit of trash in the trashcans but they were unable to leave the trashcans on the curb because it was not trash day. Otherwise, they left none of their trash anywhere so they are unclear as to why you charged for trash removal. The tenants acknowledge that there was a large window that had a crack in it and do not dispute that item. As to the screen door replacement, the tenants report that there were two screen doors, both of which had been removed from the tracks and set to the side because the frames of the screens had become slightly bent over time and kept coming out of the track. Otherwise, they state there was no damage to the screens. The tenants reported that the walls were in essentially the same condition upon move out as found when they moved in with only a small area that had a minor drywall ding. Otherwise, the tenants did report that there had been a leaking pipe in the kitchen that caused some of the drywall near the pipe to peel but this was your responsibility. None of the tenants reported leaving a car battery at the house. All tenants reported that there were many items that had been left in the garage when they moved in and they all seem to believe that the previous tenant must have left the car battery there and it was therefore in the garage when they moved in. California statute provides that a security deposit must be returned within 21 calendar days or less after a tenant moves out. (Section (g)(1).) The landlord must also provide an itemized statement at that time that lists the amounts of any deductions from the security deposit and the reasons for the deductions. The itemized statement must include copies of the receipts 2 1 All references to statute are to the Civil Code unless otherwise stated. 2 If the landlord or the landlord s employees did the work then the itemized statement must describe the work performed (including the time spent and a reasonably hourly rate charged).if another person or business did the work then the landlord must provide the tenant with copies of the person s or business invoice or receipt and provide the business or person s name, address, 2

3 (for any item that cost more than $125.00) for the charges the landlord deducted for cleaning and/or repairs from the security deposit. (Section (g)(1).) In direct contravention of California Landlord/Tenant Law, you did not provide the tenants with any receipts for your deductions to the security deposit. A landlord can charge against the security deposit for cleaning a rental unit but only to make the unit as clean as when the tenant first moved in and for repair of damages that are not a result of normal wear and tear. (Section (b)(3).) The amounts withheld must be reasonably necessary for these purposes. 3. (Section (e).) All itemized statements along with the required invoices or receipts must be mailed or delivered to the address the tenant provides or, if no address is provided, the documentation must be mailed to the address of the rental unit from which the tenant moved. (Section (g)(6).) CARPETS Normal wear and tear to carpets, drapes and other furnishings cannot be charged against a tenant s security deposit. (Civil Code Section (e).) While normal wear and tear is not defined in the statute, the California Department of Consumer Affairs 4 suggest that normal wear and tear includes simple wearing down of carpet and drapes because of normal use or aging, and includes moderate dirt or spotting. In contrast, large rips or indelible stains justify a deduction from the tenant's security deposit for repairing the carpet or drapes, or replacing them if that is reasonably necessary. According to the Department of Consumer Affairs, one common method of calculating the deduction for replacement of carpet that was damaged beyond repair by a tenant is to prorate the cost of replacement so that the tenant pays only for the remaining useful life of the item that the tenant has damaged or destroyed. For example, suppose a tenant has damaged beyond repair an and telephone number on the invoice, receipt, or the itemized statement. If the landlord deducted for materials or supplies then the landlord must provide a copy of the invoice or receipt (if the item used to repair or clean the unit is one the landlord regularly purchases or purchases in bulk then the landlord must reasonably document the item s cost). The landlord is allowed to make a good faith estimate of charges and include the estimate in the itemized statement if the repair cannot be completed within 21 days and a receipt is not yet available. (Section (g)(2).) In such a situation, the landlord must mail or deliver to the tenant a correct itemized statement along with the required receipts and any refund due within 14 calendar days after completing the repairs or receiving the invoice or receipt. (Civil Code Section (g)(2).) 3 The statute's terms "reasonably necessary" and "normal wear and tear" are not defined

4 eight-year-old carpet that had a life expectancy of ten years and that a replacement carpet of similar quality would cost $1,000. The landlord could properly charge only $200 for the two years' worth of life (use) that would have remained if the tenant had not damaged the carpet. All tenants reported to me that the carpet was in good condition when they moved in. You allege that the carpet had an odor that you could not remove and therefore you had to replace the carpet. The tenants emphatically deny this. In any event, it seems unlikely that the carpet would have had an odor throughout or even that there could be an odor that a professional carpet cleaner could not remove. Even assuming such an odor, it is not accepted practice, according to the Department of Consumer Affairs, to charge the full cost of replacing the carpet. In order to document this charge, you need to provide the following: 1) evidence of attempts to remove the odor (e.g.. invoice and/or statement from a professional carpet cleaner), 2) a receipt for the cost of the original carpet and 3) a receipt for the cost of the replacement carpet. Only then can a determination be made of what you may reasonably charge for the carpet cleaning and/or replacement. REPAINTING WALLS The Department of Consumer Affairs citing Brown, Warner and Portman, The California Landlord's Law Book, Vol. I: Rights & Responsibilities, pages ; (NOLO Press 2009), suggests that wall paint has a two-year life and any tenancy beyond that would not justify a charge for repainting walls. There is no hard and fast rule and the Department notes that some landlords assume a three-year or more life to wall paint. Ultimately, this would be up to the court to decide if the issue is not settled. In any case, it is customary, when deducting for repainting walls, to base that on the duration of the tenancy and pro-rate accordingly. Thus if a three year life is assumed, the tenants occupied the premises for a little over two years thereby justifying a charge of something less than 1/3 of the painting costs. The tenants insist that the walls were in the same condition as when they moved in. You charged $1,500 for painting. While there is no receipt, this amount suggests that this charge represents the full amount for painting the entire interior and such a charge cannot be justified. As to the alleged damage to the walls, the tenants state that the drywall in the kitchen was 4

5 damaged by a leaking pipe which was not their fault.. The Department of Consumer Affairs, again citing Warner and Portman, The California Landlord's Law Book, Vol. I: Rights & Responsibilities, pages ; (NOLO Press 2009), suggests that minor marks and nicks in walls are normal wear and tear however large marks or gouges are the tenant s responsibility. If a landlord does not provide a full refund or a statement of deductions and a refund of amounts not deducted by the statutory 21 day period then such landlord loses the right to keep the security deposit and must return the entire deposit to the tenant. (Granberry v. Islay Investments (1995) 9 Cal.4th 738, 745.) Although the Granberry Court did not specify whether this requirement includes the required supporting documentation also be provided with the itemization, it is so implied as the decision was based on a plain reading of the statute 5. Inasmuch as you did not provide supporting documentation for your Final Statement itemization of charges against the tenant s security deposit, there is a basis for claiming a refund of the entire deposit. The Granberry Court did not hold that a landlord s failure to comply with the statutory requirement to provide the documentation within 21 days bars a landlord from all rights to claim damages for unpaid rent, repair, and cleaning, only that such damages must subsequently be claimed in a judicial proceeding 6. What that means is that, according to the laws of the State of California, your failure to adequately provide notice of the deductions from the security notice results in the forfeit of your right to claim these amounts via the statutorily 5 From the plain language of the statute [Section , subdivision (f)] we conclude that a landlord (1) must return a tenant's security deposit within the specified period after the termination of the tenancy, (2) may retain all or part of the security deposit as compensation for unpaid rent, repairs, and cleaning, and (3) must provide a written accounting of any amounts retained within the specified period. If, within the specified period, the landlord has not provided the tenant with a written accounting of the portion of the security deposit he plans to retain, the right to retain all or part of the security deposit under section , subdivision (f), has not been perfected, and he must return the entire deposit to the tenant. (Granberry supra, 9 Cal.4th at ) 6 [W]e conclude that a landlord who has failed in good faith to take advantage of the summary nonjudicial deduct-and-retain procedure allowed under section , subdivision (f), may recover damages for unpaid rent, repairs and cleaning ( , subd. (e)) in a subsequent judicial proceeding provided that he proves by a preponderance of the evidence that he has suffered such damages and that the amount claimed is reasonable ( , subd. (k)). (Granberry, supra, 9 Cal. 4 th at ) 5

6 defined process. Rather, you must refund the entire amount and then pursue your action in a court of law. If, in a court action, a tenant can prove that the landlord acted in "bad faith" in refusing to return the security deposit, as appears to be the case here, then the court can order the landlord to pay the tenant the amount of the improperly withheld deposit, plus up to twice the amount of the security deposit as a "bad faith" penalty. It is the landlord s burden to prove that any deductions from the tenant s security deposit were reasonable. (Section (l).)The court can award a bad faith penalty in addition to actual damages whenever the facts of the case warrant even if the tenant has not requested the penalty. (Section (l).) Furthermore, my client might be entitled to recover court costs and fees and possibly attorney s fees should he prevail in such an action. If you do not refund the tenant s security deposit within 10 days, I will advise my client to pursue this matter in a court of law. Yours very truly, Attorney 6