Withholding security deposit-when can I show the house to new tenants?

Question

On the 17th of this month,my tenant notified me that she will be moving out on the 22nd, she wants the security deposit be returned right after she moved out. However, because she didn't give me 30 days advance notice, I have to withhold part of the security deposit to cover the17 days of rent, in case if I can't rent it out. She said if I withhold her deposit, then I can not show the house even after she moved because her deposit covers the 17 days as rent. I tried to explain to her the sooner I rent it out, the more refund she will get back, but she just would not co-operate.

My question is, she paid rent for July and I am withholding her deposit for August 1 thru August 15, Can I show the house to potential tenants on August 1? S

My question is, she paid rent for July and I am withholding her deposit for August 1 thru August 15, Can I show the house to potential tenants on August 1?  S

Jon Holdman · Answer

You certainly do have a lease.  The old landlord should have had a lease (document, singed by landlord and tenant) even if the terms is month to month.  If not, there are still state and local laws.

She can't keep you from showing the house while she's there, let alone after she moves out.

I try to avoid battles about the security deposit at the move out time.  That is, I will point out what's wrong with the property and state that will need to be repaired.  If there's a termination fee, I remind them of that.  When I receive notice, which is almost always verbal, I send a letter stating the timing of their exit, anything that applies to the moveout and saying I can show the property.  I have a copy for them to sign and return and remind them written notice is required to make the notice effective.  Otherwise, they have not really given notice at all.

Toward the end of the required period, I write a letter itemizing the charges against their security deposit.  I include copies of receipts if I paid someone to do work.  If they're getting money back, I include a check.  If not, they get a bill.  Unfortunately, the bill is more common, especially if they have not given proper notice.

Again, you MUST understand CA and local laws and a chat with an attorney is in order.  Paying for legal services is just part of being in the rental business.

Ophelia Nicholson · Answer

Hi Roy,
 Last I checked she didn't own the house, you did. She can say that a chicken clucks loudly but it would make zero diffence, is she going to be there monitoring the house 24/7 to make sure you don't show the house while you have possesion of her security deposit?
  Jon is right, you have all right to show the house and the lease usually says that the landlord has the right to show the property while the tenant is still there, the tenant has to accomodate it if you give them proper notice that you will be showing the house.
 Did the old landlord not pass on the lease, you said its a month to month, but even month to months aren't usually verbal they are part of the original lease that once the terms are ended landlord and tenant can choose to renew month to month once 30 days notice given. Original lease still applies.

Jon Holdman · Answer

Sounds like you have a weak lease.  Mine says security deposits are returned 30 days after the tenant moves out (CO law actually allows up to 60.) Mine requires the tenant give me 30 days notice to vacate.  They can only leave at the end of the month, so that means notice on the first or second in order to move out at the end of the month.  Mine says failure to give proper notice results in a "improper lease termination" fee, which I make equal to the security deposit.   Mine also states I can start showing the property with 24 hours notice as soon as notice is given.  Under my lease I would put up a sign and start taking calls as soon as she gave notice.  Especially this late in the month.  My leases are month to month so I wouldn't charge for August rent at all.  Most areas forbid collecting double rent, so you can't collect rent from a new tenant and charge the old one rent at the same time.  If you are able to get a new tenant on August 1st, then you can't charge the old tenant rent from August 1 to August 17, too.  But you should be able to show the property at any time.

Now, my lease has been reviewed by an attorney here in CO, so I'm sure it conforms to CO laws (though, you never know what a judge might decide if it comes down to that.)  But I don't know CA law.  This woudl be a good conversation to have with your attorney.  Or, a good time to find one if you don't have one.

Ryan B. · Answer

I make sure my lease says I can show the house anytime I want as long as I give the current tenant notice.  Does your lease mention anything like this?

Sounds like you have a nutball on your hands.

Aly W. · Answer

Being legally allowed to show a unit while a tenant still occupies it is tenuous at best. I had this battle twice with tenants. They were given proper notice but refused access, becoming hostile and threatening. It simply wasn't worth the battle. Waiting until they were gone was the easiest way to show the property. Another tenant agreed to do the showings for me. She was very cooperative and I gave her back the non-refundable pet fee for her effort.

I've given back small amounts of a deposit, but like Jon and Greg B have said, the tenant usually gets a bill.

Greg B. · Answer

Some states do not allow you to hold deposits to guard against rent losses.  Deposits are to protect against abnormal wear and tear.  Rents are a separate issue.  Not sure about California.

However, I don't return deposits for 30 days after tenant has left.  Like Jon says, the unit has to be cleaned, assessed, and repaired.  After that process is complete they get an itemized list and usually a bill.  I usually don't get paid any overage and I usually don't hear from them again.

Roy Lam · Answer

Thank you all for your valuable advices, I have one more question.  When do I return the security deposit to the tenant and how?  The law says within 21 days, but what day do I use to starting?  Should I mail her the check or hand it to her ?

Roy Lam · Answer

I don't have a lease, it is month to month signed by previous owner.  I bought the property last November.  I checked the California Tenant Handbook, it does require a 30 day written notice.  I am not trying to get double rent, I just want to rent it out as soon as I can, so I can return whatever un-need security deposit basck to her.  But she claims if I withhold her deposit to the 15th, I can not show the house at all to other potential tenants.

But my question is, since she didn't pay rent for August, she should have the right to keep me from showing it.  Withholding her deposit is only to protect my loss, I am not trying to profit from it.

Withholding security deposit-when can I show the house to new tenants?

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