With COVID-19 court closures, you can now strategically apply your security deposit to the last few months of rent, and the landlord cannot do anything about it.  Historically, landlords could evict with a three-day notice if tenants tried to apply their deposit to rent. This eviction would then go on a tenant’s record. This has all changed.  In March 2020, the Judicial Council of California suspended all evictions until ninety days after the Governor of California lifts the state of emergency.  As long as a tenant moves out before an eviction judgment, the eviction record will not go on the tenant’s record.  The tenant needs to monitor any eviction action to ensure the court knows that the unit is vacant.  The unlawful detainer will then get dismissed.  If the landlord has a claim for damage to the unit, the landlord would have to pursue the tenant in small claims court.  Rather than allow a landlord to keep your deposit for normal wear and tear, apply your deposit to rent and make the landlord pursue you. For more than a century, landlords have had all the power when it comes to returning security deposits, but now, because of the pandemic, the power has shifted to tenants.  If you do not have money for rent, or if you are worried that your landlord will abscond with your deposit, follow our guide to use the entire deposit for rent.

Here is Tobener Ravenscroft LLP’s step-by-step guide to applying your deposit to your last months of rent:

1.  Inform the landlord in writing that you will be applying your deposit to the last months of your tenancy.  Apply the deposit to as many months as you can.
2.  Give the landlord a date certain for your move out.
3.  If the landlord pushes back, tell the landlord that courts are closed and that an eviction lawsuit will be a waste of money because you will be long gone by the time there is a trial.
4.  If you get a three-day notice, you can stay in the unit and not pay.  Again, as long as you move out before a judgment, eviction records in California are sealed and not available for public viewing. This means that even if an eviction is filed against you, it is not on your record unless you stay and get a judgment against you.  Be aware though, that certain courts are better than others at abiding by the
law requiring eviction lawsuits to be sealed.  Some online court systems state “record not available for public viewing” when you search a tenant’s name online.  This tends to tip property managers or screening agencies off that there’s likely an eviction in the tenant’s past.  If you talk to the screening company about the eviction being related to COVID-19, it’s likely prospective landlords will be more understanding of a marked past.
5.  Once your case is finally assigned a trial date, be sure to move out before trial.   If a tenant moves out while an eviction lawsuit is still pending the landlord cannot continue with the lawsuit as an eviction.
6.  Be sure to inform the court, the opposing attorney and the landlord that you have vacated and that the eviction lawsuit can no longer go forward.  Track the case to make sure it is dismissed.  If the landlord claims you owe additional rent or have caused damage to the unit, the landlord can either convert the eviction action to a regular civil action or take you to small claims court.
7.  Before you vacate, take good video of the property showing that you left it in great condition.  It is good to have a third-party witness, like a friend or work colleague, walk through the unit to see if there are any issues.

It should be noted that the landlord may choose to pursue the money owed through a debt collection action or selling the debt to a collector.  If the debt goes to a collector or you lose in small claims, this could go on a tenant’s credit record.  This step-by-step guide we have put together here is not meant to replace legal advice from a tenant rights attorney on your particular case.   

Each case is unique, and the laws are complicated and always changing.  Any tenant who is considering staying and waiting for an eviction lawsuit should reach out to a tenant lawyer for advice on whether the general points outlined above make sense in your situation.

Please feel free to reach out to one of the tenant rights lawyers at Tobener Ravenscroft LLP.  You can call us anytime at 415-504-2165.  We are here to help tenants take back the power!