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When The Landlord Can Keep Your Security Deposit  
There are many situations where the landlord can retain your security deposit.  The landlord can retain some or all of the security deposit to make up for unpaid rent or physical damage done to the premises by the tenant, the tenant's household members, pets or guests.  Note that it is illegal for the landlord to deduct damages for normal wear and tear. See 44-7-34(a). Thus, carpet cleaning, wall painting and other like expenses cannot be deducted from your security deposit if such resulted from normal wear and tear.   

Your security deposits may also be withheld for actual damages caused by breach of the lease or rental agreement.  That's why you should always review your lease before leaving the apartment.  Often leases require that the tenant thoroughly clean the apartment or give 30 days notice to the landlord before moving out.  If you don't follow these provisions to the letter you could very well lose your deposit.

Rules The Landlord Must Follow (For 10 Units Or More)
Landlords who manage ten or more units are held to higher standards than other landlords.  To retain your security deposit, these landlords must follow each and every procedure set forth in Georgia law.  If the landlord deviates from these rules, their right to retain your deposit will be lost. If the landlord gives you the entire deposit back rather than retaining it, recent case law says they may still be able to sue later for damages. Travelers Insurance Company v. Linn, 235 Ga. App. 641, 510 S.E.2d 139 (1998) (case seems to nullify forfeiture provisions in 44-7-35(b)).

Georgia law requires the landlord to inspect the premises for defects and compile a list of damages and their estimated dollar value.  The inspection and the list must be completed within three business days of termination of the occupancy.  The list must then be furnished to you within five business days from termination of the occupancy. See Georgia Law 44-7-33(b).  If the landlord is late, he loses the right to retain your security deposit even if the apartment was left in shambles. 44-7-35(b). All landlords regardless of the number of units they own, must return the remaining security deposit to the tenant within one month after termination of the lease or surrender and acceptance of the premises, whichever occurs last. 44-7-34

Keep in mind that these requirements apply only to damage claims to the apartment.  The landlord always has the right to keep your security deposit for any unpaid rent.  ZAKARIA v. MCELWANEY, 174 Ga.App. 149, 329 S.E.2d 310 (1986) (failure to comply with security provisions did not bar landlord from withholding from security deposit any unpaid rent).  
 

PROTECTING YOUR RIGHTS TO YOUR DEPOSIT (10 OR MORE UNITS)

If you are given a list of damages within the proper time period, you have five business days from the termination of occupancy to inspect the apartment and review the list for accuracy.  If you fail to do so you will lose the right to complain later.  Make sure to never  sign the landlord's list unless you completely agree with all of the itemized damages. 

Signing this list means you agree that these damages are correct. 44-7-33(b).  Any objections to the list must be specific and put in writing within this time period.  The tenant must sign this dissent and present it to the landlord. (Your dissent should also be dated and a copy should be kept for your records)  

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Your Rights When The Landlord Manages Under Ten Units
Many of the inspection procedures set forth in Georgia law apply only to landlords who own ten or more rental units or to landlords who use a third party agent to manage the units.  However, if certain rules are not met, all landlords regardless of the number of units they own, must return the security deposit to the tenant within one month after termination of the lease or surrender and acceptance of the premises, whichever occurs last. 44-7-34 

If the landlord deviates from these rules, their right to retain your deposit will be lost. However, this does not mean they lose the right to sue you. If the landlord gives you the entire deposit back rather than retaining it, recent case law says they may still be able to sue later for damages. Travelers Insurance Company v. Linn, 235 Ga. App. 641, 510 S.E.2d 139 (1998) (case seems to nullify forfeiture provisions in 44-7-35(b)).

What The Landlord Must do To Justify Retaining Your Deposit
If the landlord is retaining all or part of the security deposit, a statement specifying the exact reasons for doing so must be sent within this 30 to 31 day period.  

Owners of fewer than ten units do not have to follow the stringent standards set forth in 44-7-31, 44-7-32, 44-7-35 and some of 44-7-33.  Laws 44-7-31 and 44-7-32 establish where the landlord is to place your security deposit.  44-7-33 and 44-7-35 say when landlords lose rights to your deposit and when they are liable for 3 times the amount of deposits improperly withheld.  NOTE: these laws still apply in situations where an owner of under ten units hires someone to manage and collect rent from these units. (44-7-36).  

Retaining Deposit Due To Damages                       

If the deposit is being retained because the premises was damaged, such damages must be listed as provided for in 44-7-33. Although the law is far from clear in this area, I'd argue that the three business day deadline (where the landlord must furnish the tenant with a list of damages) also applies to apartments under ten units. (See 44-7-33(b)).  In other words, small landlords should also forfeit their deposits unless they promptly inspect the apartment, promptly makes a list of damages and promptly provide you with the list so you can make objections.

When the law is unclear it's good to argue the purpose behind the law.  The purpose behind these laws is very simple.  Their role is to make it easy for the court to determine who in this case caused the damages. 

The law also serves another purpose which is to reduce the number of fights in the courtroom.   Argue that delays in compiling the list or in furnishing it to the tenant allow for the premises to be damaged by someone else and to have these damages wrongfully blamed on the tenant.

This opens the door for needless disputes and more litigation.  Indeed, this very case would never have gotten to court if the landlord had simply followed the rules here.  Given such, the landlord now has no right to keep my deposit. He should in no way be rewarded for his failure to act promptly.

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Collecting Your Deposit When You Leave But Your Roommate Remains

You may have trouble getting your security deposit if you leave but your roommate chooses to remain in the apartment.  In this situation, the landlord may opt to keep your money until the apartment is completely vacant.  

In some cases, getting back your money is easy.  If another roommate moves in, you can simply have that person pay you the amount of your deposit.  But what if your roommate decides to rent the apartment alone?  How do you protect yourself when your roommate is either unable or unwilling to refund your money?   

In these cases, you must choose between getting the money from your roommate or getting the money from your landlord.  If your landlord is a big company or has a lawyer, try your roommate first.

Persuading Your Roommate To Refund Your Money  
Be fair and give your roommate a choice in the matter. Explain that you're leaving and would like back your share of the security deposit. Be reasonable and offer your roommate a choice in the matter.

"You can pay my last month's rent for me and keep my deposit, or you can give me a money order or cashier's check for the rent and I'll pay it myself."  It may be that your roommate is worried you'll leave without cleaning the apartment.  This is a real concern for a dirty apartment may result in the lose of her security deposit. To allay her fears, tell her "if you want, we can place the money in a joint account where we both must sign for it.  The money will remain there until the apartment is cleaned to the landlord's satisfaction." 

If your roommate is uncooperative, consider how badly you need the money.  If you're desperate, try the following: "If you won't give me the money or pay my rent, then I will withhold rent so I can recoup my deposit.  The landlord will then evict us both but by that time I will be long gone from here.  When the landlord evicts us, you too will have to find another apartment.  I know that by doing this, it may ruin both of our credit but I'm desperate.  And I'm willing to take a gamble that my creditors will understand when I explained what happened.  The decision is yours.  Please tell me what we should do here." 

When you are ready to leave, buy a disposable camera and take pictures of the areas you cleaned.  Make sure your pictures are date stamped or that there's a photo of today's newspaper in at least one of your pictures.  Your dated pictures are proof that you left the apartment in good order.     

Persuading Your Landlord To Refund Your Money

Your other option is to get the money back from your landlord.  Check your lease to see if security refunds depend on the apartment being completely vacant.  Do not go this route unless the lease says otherwise or is silent on the matter.  Note: the law is murky in this area and the landlord may still be allowed to keep your money.  Given your weak position it pays to be extra nice. 

Show the landlord through pictures or otherwise that you have cleaned your part of the apartment.  Then politely explain the following: "I have complied with all of the conditions in my lease and ask that my deposit be returned."  If the landlord objects, point out that "the lease does not say you can keep my money based on the actions of my roommate.  If such were true then that would make me responsible for how my roommate treats the apartment even when I am no longer on the lease and have moved to another state.  My roommate could stay there for years, trash the apartment and I'm expected to pay for it?  That's not right.  My lease is up and I've done all I can.  Please refund my money as is required under the Security and Deposit Act."

If the landlord remains uncooperative, you can file a claim in magistrate court (small claims court).  You do not need a lawyer to sue in magistrate court.  Call up the court in your county and ask the court clerk for guidance.  Court clerks often deal with non-lawyers and will walk you through the process.  For more help, 

See Consumer-SOS/Lawyers, Courts & Self Help

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Sample Demand Letter For Return Of Your Deposit
Letter From Tenant
Letter From Tenant's Attorney
 

Letter From Tenant

January 5, 2012

Dear X:

I am writing about the security deposit of $    that I put down on the [apt/house/trailer] at  [write in address]       .  Because you have not strictly adhered to the procedures for retaining security deposits laid out in Georgia Code O.C.G.A. §§ 44-7-30 through 44-7-36, you have forfeited any right you may have had to retain my deposit or to claim additional damages from me.  Therefore, you must return my deposit in full by [write in specific date when the deposit must be returned].  

In order to make any claim for physical damages to the rental unit, a landlord must strictly follow the requirements of Georgia's Security Deposit laws.  [Continue paragraph by adding any one or more of the following statements that fit your situation].

1.   The landlord must perform a move-out inspection of the premises and provide the tenant with a list of damages and the estimated value of the damages within 3 business days after the tenant has vacated the premises.  Within 5 business days after the tenant has moved, the tenant then has the right to re-enter the premises to verify the accuracy of the list.  

2.   If the landlord wishes to retain any or all of the tenant's deposit, the landlord must provide the tenant with a statement giving specific reasons for retaining the deposit and costs of any damage claimed. [If your landlord is claiming part of your deposit, but did not return the unclaimed part of the deposit, then add the following].  In addition, any unclaimed part of the deposit must be returned with the written statement.  

3.   The landlord may not retain any part of the tenant's security deposit for normal wear and tear of the premises.  Of the items on your list, the following either did not occur during my occupancy or amount to no more than normal wear and tear: [include the appropriate item or items].  

4.   The landlord must return the deposit within a month after the tenant vacates the premises.  
 
 

[After inserting one or more of these 4 options, continue the paragraph with the next two sentences].
 

Because you have failed in your legal obligation to follow the procedures of the Security Deposit Law, Georgia Code provides that you have forfeited any right you may have had to retain my security deposit or to claim additional damages from me.  To avoid further liability, you must return my deposit in full by [repeat the date you put in the 1st paragraph].  

If you do not return the deposit by that date, I will file a claim against [write in the name of the
apartment complex, the realty management company, or the word "you" if your landlord is an individual]. [Do not write this next sentence unless the landlord has ten or more units or hires someone to manage the premises].  Under Georgia Code Section 44-7-35, I may sue you for three times the amount you are improperly withholding, plus attorney's fees and court costs.  I have consulted with an attorney [write only if true] and am aware of my legal rights and your legal responsibilities regarding security deposits.  I am ready willing and able to take the legal action necessary to resolve this matter.

Sincerely,

                                         [your name]

Note:

Make copies of this letter and send 2 originals to your landlord. The first will be sent certified mail, return receipt requested. The second will be sent at the same time, through regular first class mail. Just below the date on each letter, write: "THIS LETTER HAS BEEN SENT BY FIRST CLASS US MAIL AND CERTIFIED MAIL RETURN RECEIPT REQUESTED" Keep copies of the receipt showing that the landlord signed for it. If the landlord does not sign for it, the presumption will be he received the letter anyway as it was also sent by first class mail.    

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Sample Attorney Demand Letter For Return Of Security Deposit (Georgia Law)

Dewey Cheatam & Howe, LLC
515 Wyncourtney Dr, NE, STE 300
Atlanta, GA 30328

June 29, 2019

VIA FEDERAL EXPRESS

Mr. Amalgamated Uniblab
Post Apartments Management
P.O. Box 6023
Atlanta, GA 30022

Re: Demand Letter for Return of Wrongfully Withheld Security Deposit

Dear Mr. Smith:

        Dewey Cheatam & Howe, LLC represents Ms. Susan Connor with respect to her lease agreement (“Residential Lease Agreement”) for property located at 515 Wyncourtney Dr, Atlanta, GA 30328 (the “Subject Property”) and related matters. Ms. Connor was a tenant of yours at the Subject Property from August 15, 2010 to August 14, 2012. During her tenancy, she paid you a security deposit of Eight Hundred Dollars ($800).

After providing written notice of her intent to vacate the Subject Property, Ms. Connor surrendered possession of the premises to you no later than May 14, 2019. Yet, to date, Ms. Connor has not received her security deposit and/or an itemization of deductions from her security deposit, even after having demanded its return. As you may be aware, the Georgia Code imposes strict requirements on landlords regarding the return of security deposits.

Section 44-7-34 and 44-7-35 of the Georgia Code provides, in pertinent part, that:

1. Within one month after the surrender of the premises, a landlord shall return to the tenant the full security deposit that was deposited with the landlord by the tenant. If the landlord retains all or part of the security deposit, the landlord shall give to the tenant the balance of the security deposit, if any, together with a written description and itemized list of all deductions.

2. Any landlord who fails to return any part of a security deposit which is required to be returned to a tenant will be liable to the tenant in the amount of three times the sum improperly withheld plus reasonable attorney’s fees. Further,
   when the landlord does not provide a written description and itemized list of damages and charges, the landlord:
    

   1. Forfeits the right to withhold any portion of the security deposit or to bring suit against the tenant for damages to the premises; and
       

   2. Is liable for the tenant’s reasonable attorney’s fees in a suit to recover the deposit.

   You failed to provide Ms. Connor with the final damages inspection report and the 30-day notice of your intent to withhold the security deposit – both of which constitute violations of the Security Deposit Act under Georgia law. As a result, you have forfeited any right you had to withhold any portion of Ms. Connor’s security deposit for any damages to the premises. Therefore, because you have wrongfully withheld Ms. Connor’s security deposit of $800 and failed to include any written description and itemized list of deductions as required by Georgia law, you may own Ms. Connor the sum of One Thousand Two Hundred Dollars ($2,400) (three times $800), plus attorney’s fees.
   
               Furthermore, Ms. Connor reserves all rights and remedies to which she may be entitled under the Residential Lease Agreement or otherwise at law or in equity, including without limitation, the right to take immediate legal action for the return of her security deposit and related treble damages. This letter and the demand and notices contained herein shall in no event constitute nor be deemed to be an election of remedies or a waiver by Ms. Connor of any rights or remedies that she may have under the Lease or at law or in equity.

   This letter is an attempt at settlement and all information contained herein shall not be admissible in the event this matter is litigated. Should you prefer to discuss this matter in an attempt to quickly and amicably resolve the issues between Ms. Connor and you with respect to the Residential Lease Agreement, please feel free to contact me at 678-578-9228. Or, if you are represented by counsel, then I would gladly accept a call from your attorney in an attempt to reach a resolution. Regardless, this matter demands your immediate attention. If we do not hear from you within 30 days of receipt of this letter, then we will have no choice but to seek assistance from the court.

   Sincerely,

    

   I Cheatem N. Howe, Esq.

    

               cc: Ms. Susan Connor

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