The landlord kept the deposit: how five legal systems decide who was right
France, Germany, Spain, California and New York compared on security deposits: who bears the burden of proof, whether there is a deadline, what wear and tear means, and what the landlord loses by getting it wrong.
The problem
You moved out, handed back the keys, and the deposit has not come back. The landlord says there is damage; you say it was like that when you arrived and you have no document to prove it. The argument is almost always the same argument in every country - what did the place look like on day one - but the systems compared here answer it in strikingly different ways, and two of them start from a presumption that surprises most tenants.
What they agree on
Every system here agrees on the two things a tenant most wants to hear. First, the deposit is not the landlord's money. It is security for defined claims, and where those claims do not exist it comes back. Second, ordinary wear and tear is not chargeable. Spain's art. 1561 obliges the tenant to hand the property back as received 'salvo lo que hubiese perecido o se hubiera menoscabado por el tiempo o por causa inevitable'. California's Civil Code § 1950.5(e)(2)(A) goes further than any of the others in spelling this out: the landlord shall not claim for conditions that pre-existed the tenancy, for ordinary wear and tear or its effects 'whether the wear and tear preexisted the tenancy or occurred during the tenancy', or for the cumulative effects of wear across one or more tenancies. New York's GOL § 7-108(1-a)(b) says the landlord 'may not retain any amount of the deposit for costs relating to ordinary wear and tear of occupancy or damage caused by a prior tenant'.
All of them also agree that the real fight is about the condition at the start, and every one of them offers a way to settle it in advance that most tenants never use. France's art. 1731 turns on whether an etat des lieux was made. Spain's art. 1562 turns on whether the condition was 'expressed' at the time of letting. California's § 1950.5(f) gives the tenant the right to request an initial inspection up to two weeks before moving out, with a written itemised statement of proposed deductions and a chance to cure them, and § 1950.5(g) requires the landlord to photograph the unit both before the tenancy and after it. New York's § 7-108(1-a)(c) requires the landlord to offer an inspection after the lease is signed but before occupancy, and where the tenant takes it up the parties sign a written statement of the property's condition noting existing defects - after which the landlord 'may not retain any amount of the deposit or advance due to any condition, defect, or damage noted in such agreement'.
And not one of them defines wear and tear. The phrase, or its equivalent, appears in the Spanish, Californian and New York provisions and is explained in none of them. Whether a mark on a wall after five years is wear or damage is a question of fact about age, use and evidence in all five systems, and the answer is not in any statute book.
Where they part company
| Jurisdiction | What its law does | Why it matters |
|---|---|---|
| France | In France the presumption runs against the tenant. Art. 1731: where no inventory of condition was made, 'le preneur est presume les avoir recus en bon etat de reparations locatives, et doit les rendre tels, sauf la preuve contraire'. No document at move-in does not mean the landlord cannot prove damage; it means the tenant is taken to have received the place in good repair and has to prove otherwise. | This is the single most counter-intuitive rule in the comparison. Tenants routinely believe that the absence of an inventory helps them, on the ground that nothing was recorded. In France it is the opposite, and the evidence that rebuts the presumption - dated photographs, letters to the landlord, messages - has to be assembled on the day of arrival, not the day of departure. |
| Deutschland | Germany does not regulate the argument at all; it regulates the money. § 551(1) caps the security at three times the monthly rent excluding operating costs shown as a flat rate or advance payment - so the net cold rent, not the gross. § 551(2) entitles the tenant to pay in three equal monthly instalments, the first due at the start of the tenancy and the rest with the immediately following rent payments. § 551(3) requires the landlord to invest the money at a credit institution at the rate usual for savings deposits with three months' notice, kept separate from the landlord's own assets, with the yield belonging to the tenant and increasing the security. § 551(4) makes any agreement to the tenant's disadvantage void. | The German legislature's answer to 'the landlord kept my deposit' is to make sure the landlord never really had it. The separate investment is insolvency protection: the money is not in the landlord's estate. The instalment right is unusual too, and is frequently absent from German leases that demand the whole sum before the keys change hands. |
| Germany sets no deadline for returning the deposit at all - § 551 is silent, and the German page says so expressly. The discipline comes from a different direction: § 548(1) gives the landlord only six months for claims arising from changes or deterioration of the property, running from the moment he gets the property back. | Two opposite architectures for the same problem. New York and California put a clock on the landlord's paperwork and punish lateness with forfeiture. Germany puts a short limitation period on the underlying claim and lets the deposit question follow it. A tenant who wants to know 'when do I get my money back' finds a date in the American statutes and a legal argument in the German one. | |
| Contracting out is expressly impossible in the German and New York provisions and unaddressed in the French and Spanish ones. § 551(4) BGB: an agreement deviating to the tenant's disadvantage is ineffective. GOL § 7-108(3) and § 7-103(3): any waiver or modification of the tenant's rights under those sections is 'absolutely void'. | A lease clause that varies the deposit rules is simply inoperative in Germany and New York. Whether the same clause survives in France or Spain is argued on general contract grounds rather than by pointing at these articles, which do not speak to it. | |
| España | Spain has the same rule in almost the same words, in a separate article. Art. 1562: 'A falta de expresion del estado de la finca al tiempo de arrendarla, la ley presume que el arrendatario la recibio en buen estado, salvo prueba en contrario.' It divides the labour with art. 1561, which decides which part of the difference is chargeable by excluding what perished or deteriorated through time or unavoidable cause. | Two civil codes, one presumption, and it points the same way in both. This is worth stating plainly because the usual comparative story - that France uniquely fixes the evidence rather than regulating the money - is only half right: Spain does the same thing, splitting the work across arts. 1561 and 1562. |
| California | The caps do not agree on anything, including their shape. California: one month's rent in addition to the first month's rent, rising to two months for a landlord who is a natural person or an LLC all of whose members are natural persons and who owns no more than two residential rental properties totalling no more than four units - an exception that expressly does not apply where the prospective tenant is a service member. New York: one month's rent, with narrow exceptions for registered seasonal-use units and owner-occupied cooperative apartments. Germany: three months' net cold rent. | The German cap is three times the New York cap, and California's varies with the identity of the landlord rather than the property. Neither the French Code civil nor the Spanish Codigo Civil caps a residential deposit at all - those limits, where they exist, sit in the housing statutes outside these codes. |
| California is the only one that legislates about the label and about cleaning. § 1950.5(b) defines security as any payment, fee, deposit or charge 'however denominated', and § 1950.5(n) provides that a lease 'shall not contain a provision characterizing any security as nonrefundable'. § 1950.5(e)(2)(C) forbids requiring the tenant to pay for, or claiming against the security for, professional carpet cleaning or other professional cleaning unless reasonably necessary to return the premises to the condition it was in at the start. | The non-refundable cleaning fee and the automatic carpet-cleaning deduction are specific practices that California has legislated against by name. No other member of this comparison addresses either, so in the other systems those charges are attacked with general arguments about what the deposit may lawfully secure. | |
| Both American members attach a multiplier to bad conduct. California § 1950.5(m): bad faith claim or retention may expose the landlord to statutory damages of up to twice the amount of the security in addition to actual damages, and the court may award them whether or not the tenant asked. New York § 7-108(1-a)(g): actual damages, plus punitive damages of up to twice the deposit for a willful violation. § 1950.5(o) adds that the action may be brought in small claims court. | The French, Spanish and German provisions carry no multiplier. A tenant in those systems recovers the deposit and, where applicable, interest; a tenant in California or New York may recover up to three times it. That difference changes whether the dispute is worth pursuing at all. | |
| California also requires the landlord to show his working. § 1950.5(h)(2): the itemised statement must be accompanied by copies of the documents showing the charges - the bill, invoice or receipt where a third party did the work, and where the landlord or his employee did it, a reasonable description of the work with the time spent and the reasonable hourly rate charged, plus the before-and-after photographs. Where the total deductions do not exceed $125, or where the tenant has signed a valid waiver, that documentation is not required unless the tenant requests it within fourteen days. | New York requires an itemised statement but not the underlying invoices. France, Spain and Germany require neither. In practice this makes the Californian deduction the easiest of the five to test line by line. | |
| New York | New York reverses the burden by statute, in the opposite direction. GOL § 7-108(1-a)(f): 'In any action or proceeding disputing the amount of any amount of the deposit retained, the landlord shall bear the burden of proof as to the reasonableness of the amount retained.' | This is the sharpest single contrast on the page. On identical facts - no move-in inventory, a disputed mark on a floor - the French and Spanish codes start the tenant behind, and New York starts the landlord behind. California does the same as New York: § 1950.5(m) places the burden of proof as to the reasonableness of the amounts claimed on the landlord. |
| New York arrives at the same custody idea from the direction of property law, and states it more strongly. GOL § 7-103(1): the money 'shall continue to be the money of the person making such deposit or advance and shall be held in trust', shall not be mingled with the recipient's personal moneys and shall not become an asset of the recipient. Subdivision 2 requires written notice to the tenant of the bank's name and address and the amount, and where the account bears interest the landlord may retain exactly one per cent per annum as administration expenses 'in lieu of all other administrative and custodial expenses'. Subdivision 2-a makes an interest-bearing account compulsory for buildings of six or more family dwelling units. Subdivision 3 makes any waiver absolutely void. | Germany and New York converge on the point that nobody else in this comparison legislates: where the money physically sits. France, Spain and California say nothing about custody in these provisions. New York's formulation - the deposit remains the tenant's money, held in trust - is the strongest of the two, because it characterises the deposit as the tenant's property rather than the landlord's obligation. | |
| New York has the harshest deadline sanction in the comparison, and it is automatic. § 7-108(1-a)(e): within fourteen days after the tenant has vacated, the landlord must give an itemised statement and return the balance, and 'if a landlord fails to provide the tenant with the statement and deposit within fourteen days, the landlord shall forfeit any right to retain any portion of the deposit'. | No bad faith is required and no discretion is involved: a landlord with a genuine, provable claim for real damage loses the right to take it out of the deposit by being late. California's clock is twenty-one calendar days under § 1950.5(h), but the equivalent forfeiture in § 1950.5(h)(7) applies only where the landlord acts 'in bad faith'. Same mechanism, materially different trigger. |
The provision in each country
Each card links to the page that reproduces the official text and explains it in that country's own language.
France Code civil
Deutschland BGB
España Código Civil
- Artículo 1561 del Código Civil The tenant must return the property as received, except for what has perished or deteriorated through the passage of time or an unavoidable cause.
- Artículo 1562 del Código Civil Where the condition of the property was not stated at the time of letting, the law presumes the tenant received it in good condition, subject to proof to the contrary.
California California Civil Code
New York General Obligations Law
- N.Y. General Obligations Law § 7-103 The deposit remains the tenant's money and is held in trust: it may not be mingled with the landlord's funds or become an asset of the landlord, and the tenant must be told which bank holds it.
- N.Y. General Obligations Law § 7-108 One month's rent maximum, no deductions for ordinary wear and tear or a prior tenant's damage, an itemised statement within fourteen days on pain of forfeiting the right to retain anything, and the burden of proving reasonableness on the landlord.
Where there is no answer in the code
A jurisdiction listed here is a finding, not a gap. Either its answer lives outside the corpus — special legislation, case law, municipal rules — or its law simply has no such rule.
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Italia
In law we don't carry
L. 392/1978, art. 11
The Codice Civile contains no security-deposit provision. The three-month cap and the obligation to pay legal interest on an Italian residential deposit are art. 11 of L. 392/1978, a housing statute outside this corpus. A lookup returned arts. 1590 and 1587 on the condition of the property at handover, which answer the deduction question but not the deposit question, so Italy is recorded as absent rather than represented by a near-miss.
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United Kingdom
In law we don't carry
Housing Act 2004, ss. 212-215
Deposit protection in England and Wales is Housing Act 2004 ss. 212-215 - the tenancy deposit schemes, the prescribed information and the penalty of one to three times the deposit - and that Act is not in the UK corpus. A lookup reached instead for Housing Act 1988 s. 21, which is about ending an assured shorthold tenancy and is the wrong end of the tenancy entirely.
That's the law in seven places. Now let's settle your problem.
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This page compares provisions of several legal systems in general terms and links to the official text of each. It is not legal advice, it does not tell you which country's law governs your situation, and it takes no account of the circumstances of your case. For a live dispute, consult a qualified lawyer in the jurisdiction concerned.