Expert: Jim Avancena, CPM - 6/7/2011

Question
QUESTION: We moved out of our commercially leased property last month (per the lease).  When I inquired about the return of our security deposit, I received this response from my landlord:

"As you are well aware it was a banner year for snow and as a result our cost nearly tripled. I have asked our accountant to give us the calcs but I believe it’s only fair and probably contractual that "The Landlord" not be burdened with this cost and distribute the expense pro rata."

Q1) Is he correct that he can charge us pro-rata additional CAM for the past year, and
Q2) Is it in his rights to hold our security deposit and use that money to paid pre-rate additional CAM?

Thanks,
Beatrice

ANSWER: Beatrice:

Usually the cost of clearing snow is a Common Area Maintenance(CAM)cost that tenant's normally reimburse their pro-rata share to the landlord.  Some property owners give a break down of the category totals of these annual CAM costs each year to their tenants so they can see how the CAM total comes about.  If yours does, review prior years cost to see how much you have paid annually in previous years.   

Further, most jurisdictions have a provision in their landlord/tenant laws that stipulates how long a landlord can hold a tenant's security deposit before they MUST return the balance of the security deposit to the tenant after the tenant moves out.   My guess is that 30 to 60 days is most common.   

Additionally, the landlord is usually required to provide the tenant with a written breakdown of how your security deposit was applied.  In this way the tenant will know exactly how much was applied to each specific cost so the tenant will know why its security deposit balance is the amount that the landlord returns to them.  If the figures provided by the landlord seem questionable, send a certified letter to your landlord asking them to provide you with "photocopies of supporting documents" that verify its' figures.  Remember, you need to check your local landlord/tenant laws to see if this is true in your jurisdiction.  Many local governments actually post their landlord/tenant law on the Internet.   You may find it frustrating, however, finding each specific provision that is of interest to you reading the law on line.  Be patient.  

If you can't locate a copy of your local landlord/tenant law, go to the place where your local government holds its court hearings that deal with landlord and tenant disputes (some areas have landlord and tenant courts that are separate from the civil and criminal courts) and see if one of the clerks or other of the judges assistants (Not while any cases are being heard!) will tell you the specifics of the law regarding the issues that you have.  If you are lucky, maybe one of the attorneys standing around the courtroom will overhear your questions and give you the answer to your questions for no charge.

I am not an attorney, and cannot give you legal advice, however, it may be that in your area you could file a claim in Small Claims court (usually you don't need an attorney in small claims court) if your landlord does not return you security deposit within a reasonable timeframe and you want to know the disposition of your security deposit.   Small claims courts also have a judge but are more informal.  Note that they commonly have a limit on how much money can be in dispute by the parties.  If your security deposit exceeds that amount you will not be able to utilize the small claims court to resolve your dispute.  Usually you only have to fill out a form at the courthouse to get your case into the small claims court system and there are often clerks at the small claims office to help you find out if your case qualifies.

Good luck.   

---------- FOLLOW-UP ----------

QUESTION: I am having trouble finding the "landlord/tenant laws that stipulates how long a landlord can hold a tenant's security deposit before they MUST return the balance of the security deposit to the tenant after the tenant moves out."
By commercial lease is in Truckee, CA.  Can you direct me to a site that would have a copy of the local jurisdiction laws, so I can know if it is 30 or 60 days.
Thanks.

Answer
Beatrice:

Go to the building where they actually have the legal trials for landlord and tenant disputes in your area and there will be an office in that building that administers the court activities.  Ask the staff there where you can go to get the deposit specifics you need.

-Jim