This article was posted on Wednesday, Jun 13, 2012

Legal Q & A
By Franco Simone, Esq.

Small Claims Court
Q. My tenant is suing me in small claims court over his security deposit.  What should I do?
A. First, determine if you handled the security deposit improperly.  There are specific guidelines that must be followed pursuant to Civil Code Section 1950.5.  Here are some of the reasons your tenant may be suing you.

1.  Failure to send the security deposit accounting within 21 days of tenant
vacating the premises.
2.  Failure to provide receipts or invoices for repairs or costs of cleanup over
3.  Making improper deductions from security deposit or
4.  Charging for ordinary wear and tear

Second, if you feel that you may have made a mistake in handling the security deposit accounting, it is a good idea to attempt to settle the matter directly with your tenant prior to the court trial.  However, if you believe that the accounting and handling of the security deposit was correct and in good faith, you can fight the small claims action.  To do this, you will need to prepare your defense.  This may include gathering  items such as any photographs taken of the premises after the tenant vacated, copy of lease/rental contract, move-in/move-out checklist, copies of all receipts and invoices that support your deductions from the security deposit and having witnesses to the damages appear in court to testify.

Q. How much can I be sued for in small claims if my tenant claims I didn’t properly handle the security deposit?
A. As the landlord, you can be sued for the full amount of the security deposit plus twice that amount if you acted in bad faith in refusing to return your tenant’s security deposit.   However the total amount cannot exceed $10,000 since this is the limit in small claims court.  To request sums above $10,000 the tenant would have to sue you in Superior Court.

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Q. What can I do if the tenant still owes me money even after I applied his security deposit to his outstanding balance?
A. If the tenant still owes you money after applying the security deposit, you have the option of filing a counter-claim against the tenant.  This means you will be suing the tenant in return.  You will need to prove your damages, so once again you will need to make sure that you bring any and all photos, receipts, etc. to court to back up your claim.

Q. What is the maximum amount I can sue my tenant for on a counter-claim?
A.  The $10,000 limit applies to your counter-claims as well.

Q. Are there any restrictions in small claims court on what type of claims I can make against my   tenant?
A. No.  You can sue for unpaid rent and the costs and/or expenses incurred to return the rental premises back to the condition it was in prior to your tenant moving in less normal wear and tear.  Also, any late fees, NSF charges, or any other monetary claim you may have against the tenant based on your lease/rental agreement you had with the tenant.

Q. What happens if I lose on the tenant’s claim, but I win on my counter-claim?
A. It depends on the amounts awarded by the judge, but often the two amounts will offset each other and a lesser amount will be owed by one of the parties.

Q. If I lose on the tenant’s claim can I appeal it?
A. Yes.   However, when a counter-claim is filed, if either losing party appeals their loss, then both claims will be heard again on appeal.

Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 18 years.  He is also an adjunct law professor at the University of San Diego.  Mr. Simone’s office is open Monday- Friday from 8:00 AM to 4:00 PM.  Walk-in’s welcome -no appointment necessary.  Tel: 619-235-6180, website: or email [email protected].

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