Q&A: Can security deposit be applied toward last month’s rent?

Question: I feel my landlord has been trying to get rid of me for years now, and I have finally had enough. Requested repairs have not been made and my landlord is generally unresponsive to my needs.

I went down to the local library and made a copy of a 30-day notice to terminate my tenancy, filled it out and gave it to my landlord. I also told her I am not going to pay rent for the last month because repairs have never been made, and I am certain she is going to keep my security deposit.

My landlord became angry and threatened me with a three-day notice to pay or quit as well as eviction if I failed to pay rent.

The landlord has been telling me to leave for months — nothing in writing — and I don’t feel I should have to pay for essentially being kicked out. Am I approaching this the right way?

Answer: A tenant in a month-to-month rental agreement situation most certainly has the right to give a 30-day notice to vacate. You don’t need to provide any reason for your decision.

Mostly we see disputes when tenants vacate before the 30 days expire or when, as in your case, there is a fear that the security deposit will not be returned and the tenant tries to have the landlord use the deposit as last month’s rent.

In California, however, a tenant is responsible to pay rent for the last 30 days specified in the notice to vacate.

Unless the rental agreement states otherwise (i.e. the rental agreement stipulates that you specifically paid upfront for last month’s rent), you cannot unilaterally substitute the deposit for the last month’s rent. In such case you can only use your deposit as last month’s rent if a landlord explicitly agrees to substitute the deposit for last month’s rent.

Generally a landlord would be justified in issuing a three-day notice to pay or quit when you refuse to pay rent. We would recommend paying the rent and dealing with the security deposit issue later if disagreements arise.

Consider contacting a local fair housing or mediation program, or Project Sentinel at (888) 324-7468, or visit our website at https://www.housing.org.

Van Deursen is director of Dispute Resolution Programs for Project Sentinel, a Bay Area nonprofit. Send questions to [email protected].