California  |  Landlord & Tenant Law

If your lease provides that the deposit is a "security" deposit or other language that makes it security for performance of all the lease provisions, then you definitely can hold it, as long as you make sure to fulfil your obligation to give an itemized statement of what the deposit was withheld for within the statutory time after the tenant vacates the rental. If the lease says something like "cleaning deposit," or otherwise limits your use of the deposit, then you have a trickier situation. Also bear in mind that you are under an obligation to use all commercially reasonable efforts to find a new tenant as quickly as possible, but if you do that, then the former tenant does in fact owe you rent until the new tenant is found.

Advertise and find a new tenant, so you fulfill any duty to mitigate damages, even if the new tenant is at a lower rent. The terms of the lease state whether you can use the deposit as rent. Have an attorney do it because improper deductions from a security deposit can cost you actual damages plus 2x the deposit.

Best,

Daniel Bakondi, Esq.

danielbakondi@yahoo.com

415-450-0424

The Law Office of Daniel Bakondi

870 Market Street, Suite 1161

San Francisco CA 94102

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