Secure Rental Deposit with Writ of Attachment

I have previously explained that California Civil Code Section 1950.7 limits a commercial landlords ability to use more than 2 months rent being held as a security deposit, see Commercial Landlord's Obligation to Return Security Deposit, and further explained that a commercial tenant can waive the protections of California Civil Code Section 1950.7 in the lease, see Can Tenant Waive Landlord Restrictions on Use of Security Deposit. But what if the tenant has not waived the civil code section?  Is there any way that the landlord can hold on to the amount of security deposit in excess of two months?  The answer is yes, but it will be more costly than a waiver in the lease and the landlord needs to move pretty quickly after the lease termination.

The landlord can secure the excess security deposit amounts by obtaining a Pre-Judgment Writ of Attachment, see Securing Tenant Rents While in Litigation and Before Judgment and  An Advantage of a Pre-Judgment Writ of Attachment.  However, the landlord must obtain the Writ of Attachment prior to 30 days after the date that the lease terminates, otherwise, the landlord will have to return the excess security deposit.  For example, consider the following facts:

•  Landlord holds six months security deposit equal to $120,000;
• Last months rent is $20,000;
• Tenant is $20,000 in arrears;
• Lease terminated on May 31, 2009 after the service of a 3 Day Notice and the tenant vacation on that date;
• The lease term was 5 years ending on May 31, 2012, with over $760,000 owing over the remainder of the term of the lease;
• Tenant did not waive 1950.7;
• Tenant left the premises in such a way that repair by landlord was not necessary.

Without any other facts, and assuming some other detail that I have not disclosed in this posting, the landlord will have to return $60,000 of the security deposit by July 1, 2009, since the landlord can apply back due rent of $40,000 plus last months rent of $20,000.  However, if the landlord chooses to pursue future rents owing on the lease, in accordance with Section 1951.2 of the California Civil Code, and the landlord obtains a Writ of Attachment prior to July 1, 2009, the Writ wouuld attach to the balance owing of the security deposit that would have otherwise been returned.

The landlord must ask as to whether or not the Writ of Attachment is a good or adequate remedy to secure the security deposit.  My thought is that if the landlord is going to pursue future rents, then it should be moving for a Writ of Attachment anyhow and the fact that the landlord is holding, in its hands, $60,000 is just greater motivation to go for the Writ and to do it early.  It should be noted that the Writ of Attachment could be applied to secure other assets, including but not limited to inventory, real estate, etc.