Legal Question in Landlord & Tenant Law in California

Refund of Deposit after uninhabilitability

I recently paid a $100 holding fee for an apartment in a complex where my apt. was held for about 30 days. This fee went towards the rental and took $100 off of the price I paid when I signed the lease. I was not able to see the actual unit I was renting. After I signed the lease, paid my deposit, and gave my key, the place was not acceptable. There was a very strong noxious chemical smell that made me feel ill minutes after being in the place. It was also noticed by management. I talked to the complex and they did not have another one similar that I could move into. As much as a hassle as it was, I did not move my stuff in and I told the complex I was not going to live there. They gave me back the check I had given them for my deposit and first months rent. However, they had already cashed my $100 check, and now they are saying that was not refundable and are refusing to return. I feel that since that went towards the deposit and it was assumed the place was acceptable I should get that money back. Please advise. Thank you.


Asked on 6/17/09, 7:34 pm

1 Answer from Attorneys
Jerold M. Gorski Law Offices of Jerold M. Gorski

Re: Refund of Deposit after uninhabilitability

Did you sign anything that addresses whether the holding deposit is refundable? As a general rule, if the tenant changes her/his mind, the landlord can keep some - and perhaps all - of the holding deposit. Here, however, you and the management noted the smell, and it was not a matter of you just changing your mind.

If you signed nothing that addresses the holding deposit, then demand your deposit back on the grounds that the unit was either uninhabitable (because the smell made you ill) or, at the very least, because it was not in the condition promised (either expressly or impliedly). For instance, did the model unit they showed you smell? What do their advertisements and brochures promise in the way of the condition of the units?

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Answered on 6/17/09, 10:37 pm


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