Refunding Security Deposits to Long Ago Departed Tenants

Posted by  wasserman 

A unit will soon become vacant in my building.  However, I just discovered that the original resident moved out about nine years ago.  His ex-girlfriend, who never signed the lease agreement, is the current and last occupant leaving.  What do I do with the security deposit?

Look no further than to Paragraph 8 of the SFAA Residential Tenancy Agreement:

“Any balance of the Security Deposit and an accounting of any deductions therefrom will be mailed to Tenant at the Premises unless Tenant provides, in writing to Owner, a mailing address to which the balance, if any, of the Security Deposit and the accounting should be sent. Owner’s check or other payment refunding any balance of the Security Deposit may be made in the name of any or all of the original Tenants, regardless of the party who in fact made the deposit and regardless of the identity of the persons then occupying the Premises.”

Members of our industry sometimes forget that a lease agreement is a contract that is valid and enforceable regardless of whether or not the residents who signed it currently live or even ever resided in the rental premises.  For example, I could sign a one-year lease for my college-age daughter in Pennsylvania (I actually did).  I have never lived in Pennsylvania much less even stepped foot inside the apartment where I remitted a deposit and dutifully pay rent each month as a tenant signatory.  If I forget to pay rent, the owner comes after me.  Once she leaves this housing the deposit (hopefully in full!) comes back to me in San Francisco.

Also consider Paragraph 2 of the SFAA Residential Tenancy Agreement:

“This Agreement is between Owner and each named Tenant who is a signatory to this Agreement, individually and severally. Named signatory Tenants are jointly and severally responsible and liable for the performance of their obligations under this Agreement, including the payment of rent until such time as the tenancy in its entirety is terminated and the Premises is relinquished to Owner, regardless of whether any named Tenant occupies the Premises.”

So always remember that the lease is a contract that binds the tenant signatories regardless of where they live.  As we often focus on in rent controlled places, there may be opportunities to adjust rent when the original lease signatories who moved into the apartment no longer permanently reside there and subsequent occupants are left behind, but even in those situations the people who signed the lease remain financially responsible for its performance.

And note that this obligation does not end simply because all original tenants move out and leave others in possession.  Paragraph 11 is clear on this point:

“Each person who signs this Agreement, whether or not said person is or remains in possession of the Premises, shall be jointly and severally responsible and liable for the full performance of each and every obligation of this Agreement, including, but not limited to, the payment of all rent due and the payment of costs to remedy damage to the Premises, regardless of whether such damage was caused by Tenant, Tenant’s guests, or Tenant’s invitees. This joint and several liability provision applies for as long as the tenancy continues, even if all Tenant(s) who signed this Agreement have vacated.”

These cited lease provisions mirror California contract law and would likely be effective in any residential landlord-tenant situation.  Thankfully, SFAA produces a lease each year that highlights our legal rights in order to properly educate owners and renters as to what their obligations entail under the law. Sometimes owners and residents agree to amend the lease by creating an addendum where the original tenant is released from liability and disclaims the deposit, but this author strongly recommends against such a course of action.  In sum, the boyfriend who departed nine years ago remains rent responsible until the tenancy ends, and, upon its termination, the deposit refund should be sent to him if he can be located.  If he cannot be located after a diligent search or is no longer alive, go ahead and disburse it to the vacating ex-girlfriend.

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