of `Normal' Wear and Tear Creates Snare for this Landlord
Robert S. Griswold | Steven R. Kellman | Ted Smith
This column on issues confronting renters and landlords is written
by Counselor of Real Estate and
Certified Property Manager Robert Griswold, host of Real
Estate Today! with Robert Griswold (9 a.m.
Saturdays on AM1130 - KSDO radio, or on the Internet
and by attorneys Steven R. Kellman, director of the
Tenants' Legal Center, and Ted Smith, principal in a law
firm representing landlords.
QUESTION: Is there a way to calculate "normal
wear and tear," such as 10 years for carpeting or every three
years for painting? Does it matter if a family of four with pets are
residing in the rental or just a single grandma?
ANSWER: Tenants' attorney Kellman: The code
that governs the handling of security deposits uses the term
"ordinary wear and tear" to describe the allowable amount of
use (i.e. wear and tear) of a rental without the tenant being
financially responsible for repairs or maintenance.
A certain amount of "normal" use of the
rental unit will result in an anticipated and reasonable amount of
wear that will result in the need for repair, replacement or other
maintenance work. The tenant should not be responsible for these costs
since they are considered normal maintenance and the cost of being a
The time frame for each item such as carpets or
paint vary depending on certain factors which include the quality of
materials used and the number of tenants (and pets) in a household.
There is no exact amount of time, by law, that each item should last
before it is worn out and needs maintenance, repair or replacement.
Some landlords may have items wear out unreasonably
soon due to exceptionally poor or cheap materials used. Other
landlords may have items in their rentals last a very long time
because of high quality materials they chose to use.
Now factor in the variance between a full household
with heavy wear behavior as opposed to a single person who works two
shifts and is hardly home. Each situation may be considered normal, at
least for them.
What is normal and ordinary wear and tear in each
situation continues to defy exact definition despite our best efforts.
Some management agencies make a good effort at resolving this dilemma
by telling the tenant upfront that certain of their items have
anticipated life spans under normal use. As long as those time frames
are reasonable, both landlord and tenant may use them to at least try
and assess who will be responsible when an item wears out or
significant maintenance is required.
Question: I have a signed and dated receipt and
holding deposit agreement from a qualified applicant of $1,000 that
says the applicant will pay the remaining balance of one month's rent
and security deposit minus the holding deposit. It also states
"the landlord and applicant agree that if applicant cancels or
fails to sign rental agreement and pay funds, the landlord may retain
The applicant now says she lost her job, will not
be moving in, and can't afford the higher rent. Can I keep any part of
the $1,000 since I have to advertise again and find another qualified
Landlord's attorney Smith: You did a good
job by having the prospective resident sign a holding deposit
agreement. Without a written agreement, the law is unclear as to what
deductions are proper. After approval, the applicant did not have the
right to cancel the agreement to rent. The provision in the holding
deposit agreement allows you to retain at least a portion of it.
You have indicated that your agreement allows you
to retain the entire $1,000 holding deposit in the event of
cancellation. Some judges could disagree with this and require you to
show the court what your actual monetary losses are. Some courts would
hold that you can only deduct the daily rental value from the date of
cancellation until the premises are successfully re-leased, together
with advertising and other costs.
Either way, if you choose to retain the entire
$1,000 or your actual losses, if less, provide a written accounting,
and, if applicable, any refund, within 21 days of the applicant's
Tenant's attorney Kellman: The law disfavors
penalties in rental contracts as being improper liquidated damages
clauses. Here, you have a clause in your agreement that mandates the
tenant to forfeit the entire holding deposit regardless of the damage
you may suffer, if any. This is unfair and probably unenforceable even
if you want to keep only a part of it.
You may try and soften the problem with keeping the
money by only keeping a portion of it but that does not make that
provision valid. You would arbitrarily choose how much to keep without
regard to any preagreed standard of how much to keep and under what
How much is too little or too much? By keeping any
money, you risk a claim for that money by the tenants. There are
option-type of contracts that keep a unit off the market, pending a
possible formation of a contract. Here, the entire option amount may
be retained upon the failure to enter into a contract within a given
Those agreements must be specific and meet certain
legal guidelines to be valid. Your agreement does not appear to be one
A rug's life
Question: Before renters moved into my leased
condo, we did a walk-through inspection. The only item that needed
fixing was a closet door.
Now they're saying the carpet in the living room
was not in good condition. They suggested amending the rental
agreement to reflect that. To my knowledge the carpet is fine. I had
the carpet restretched, new padding was added, and cleaned thoroughly
before they moved in. Do I have to amend the agreement per their
Landlord's attorney Smith: You should not
acknowledge that the carpet is in poor condition. Further, you are not
legally required to modify your rental agreement with this admission.
As the landlord's attorney, I think you should turn
things around. Get the tenant to sign an addendum to the rental
agreement that acknowledges you have stretched and cleaned the carpet
and that it was approved by them.
Tenant's attorney Kellman: Ted is right on
when he says that you do not need to modify the rental agreement based
on the tenants' request to do so. The facts control the situation
regardless of that amendment. Here, you say the carpet was
"fine." You replaced the padding, had it stretched and then
Despite these efforts the tenants said the carpet
was not in good condition. What a surprise. Carpet has a limited
useful life and after that time passes (usually about seven years or
so), it needs to be changed. Replacing worn-out padding and then
restretching it leads me to believe the carpet had outlived its useful
life and should have been replaced.
Of course, the carpet may have looked
"fine" right after a cleaning and restretching, but those
are temporary fixes which do not last very long. It is reasonable that
after a few months, the carpet reverted back to its old "replace
Old carpet can surely be a habitability concern.
Due to its age, it may trap mold or other contaminants that may not be
cleaned effectively. Old carpet also causes trip-and-fall or carpet
nail puncture hazards. You do not need to change the lease, just the
YOU'RE A TENANT OR LANDLORD, the authors stand ready to
answer your questions in this column, although letters
cannot be answered individually. Write them at: Rental
Roundtable, Homes Section, San Diego Union-Tribune, P.O.
Box 120191, San Diego, CA, 92112-0191. Or you may e-mail
them at email@example.com
2003 Rental Roundtable
Robert Griswold and the Real Estate
Today! radio show strongly support the intent and the letter of all federal and
state fair housing laws. As a reminder to all owners and managers of real
estate, note that all real estate advertised is subject to the Federal Fair
Housing Act, which makes it illegal to advertise "any preference,
limitation, discrimination because of race, color, national origin or ancestry, religion, sex,
physical disability, or familial status, or intention to make any such
preference, limitation or discrimination." Additional state and/or local
fair housing laws may also apply. Be sure to inform all persons that all
dwellings offered or advertised are on an equal opportunity basis.
Revised and Updated -
Wednesday, April 26, 2006
Robert S. Griswold, CRE, CPM, CCIM,
PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
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