Landlord's Dirty Drapes Leave Tenant Hanging

Landlord's Dirty Drapes Leave Tenant Hanging

Robert Griswold | Steven R. Kellman | Ted Smith
11-Apr-1999 Sunday

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 (10 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

Q: I have rented a home for the last nine years. When I moved in, the drapes were dirty and stained. I asked that they be cleaned. If the management was not going to clean them, I informed them that I would store the dirty drapes, hang my own window coverings and rehang the dirty drapes when I vacated.

They never responded. So I have used my own window coverings since I moved in. During my tenancy, every unit that has been vacated has had its drapes replaced with blinds, so I am sure they are going to replace my drapes with blinds. But can they charge me for the old, dirty drapes?

A: Smith: It sounds like the landlord is trying to modernize the building by replacing the old drapes with blinds. In my view, the landlord has the right to charge a minimum amount for the drapes, but it would be a small amount.

I would advise this landlord to leave well enough alone and not get into a dispute with you over the charge for the dirty drapes.

Kellman: Since the drapes were dirty when you moved in, you should not be responsible for cleaning them when you move.

That offer to supply your own drapes clearly went above and beyond the call of duty. The landlord should have cleaned them for you rather than taking advantage of your offer. Upon moving, you should rehang the original drapes and write a letter confirming that they are in the identical condition upon moving as they were when moving in.

Your landlord should thank you, rather than charge you, for saving the cost of cleaning the original drapes.

Q: Must the owner place the security deposit in a separate account? Must this account be interest-bearing for the benefit of the tenants?

A: Griswold: The owner is not required to place the deposit into a separate account but must be able to properly return the security deposit (after making lawfully allowed deductions) within 21 days as required by California law.

There are currently no requirements for owners to pay interest on security deposits unless you live in select rent-controlled areas, such as certain cities and the unincorporated area of Los Angeles County and certain areas of the San Francisco Bay Area.

Smith: Tenant groups have unsuccessfully lobbied California lawmakers to force landlords to pay interest on security deposits. On your departure, all the landlord has to do is return your deposit after any lawful deductions.

California real estate brokers need to be a little careful regarding security deposits. The California Department of Real Estate requires licensed brokers to maintain trust accounts for client monies. This includes licensed property management firms, which hold tenants' security deposits. But, this is a legal matter between the property manager and the landlord. Like his rental operator counterpart, the licensed agent does not have to pay interest on the deposit.

Kellman: Since there is no law requiring security deposits to be kept in interest-bearing trust accounts in San Diego, many landlords simply use the deposits for their own purposes. In other words, they spend it.

When it is time to refund the deposit, they are faced with having to return money that they have already spent. This opens the door to the deposit deduction game.

This is played by the landlord who makes unwarranted deductions for cleaning or alleged damages to justify keeping the deposit.

Sound familiar?

Some landlords just keep most of the deposit and return a small refund hoping the tenant will figure it is not worth the trouble to take action. Bolder landlords actually wipe out the deposit and send the tenant a bill for the excess deductions! This bets the tenant will be intimidated by the
bill and simply accept the loss of the deposit.

Of course, many landlords sincerely try to follow the deposit law without playing the game. If the deposits were kept in a trust account, however, I am sure more landlords would be less likely to play the game and make the refund.

Remember, a security deposit may be used to pay rent left owing after moving out, damages beyond normal use or cleaning. Tenants should protect their deposits by following some simple steps. Be sure to document damages upon moving in and let the landlord know about anything that needs repair from normal use during the tenancy.

Upon moving out, have the place professionally cleaned (including the carpets) and get a receipt showing the work was done. It may cost a little, but it will save a lot in deposit deductions.

Q: Recently, one of my children accidentally broke the window of a vacant unit in our rental community. Since it was an accident and there are no designated play areas for the children, I have refused to pay for the replacement window. Now, I have been informed that management has deducted the cost of the new window from my security deposit and I have 30 days to replenish the security deposit or I will be evicted. Can they do this?

A: Kellman: It may seem unfair that there are no designated play areas for children at your complex but there does not appear to be any specific legal requirement to provide such areas. The law does, however, prohibit discrimination against families with children.

But two wrongs don't make a right. The old saying of "You broke it, you pay for it" may well apply here. Even though the glass breaking was an accident, someone has to bear the responsibility. As the parent, that will probably be you.

Giving you 30 days to repay the deposit used for the repairs is a reasonable action by the landlord.

You should consider paying this sum to avoid a 30-day notice to move, which may generally be given with no specific stated grounds in San Diego. You could consider giving your own 30-day notice and move to a complex more suitable for children. It would merit further investigation if moving out is just what the landlord is forcing you and any other family with children
to do.

Smith: Mr. Kellman, there is nothing unfair, illegal or even immoral about asking for the tenant to be responsible for the damage caused by her child in this case.

There are good reasons to support this. It is well settled that one who damages apartment property through carelessness is responsible. The tenant is responsible for the acts of the child. California's fair housing laws force the landlord to be neutral regarding any protected class. Landlords
are legally required to take children in rentals. There can be no special treatment.

There is more bad news for the resident. The security deposit can indeed be used for damages caused by the child. Here, the landlord has a rarely used but legal clause that allows for the deduction even though the tenant is still living in the apartment. The lease provision requires the security deposit to be replenished after it is used for the window. The landlord has every legal right to make the deduction during the tenancy and ask you to replace it to bring it back to the original amount. You should replenish the deposit to avoid further legal proceedings.

I encourage every California tenant to obtain renter's insurance, which could cover liability situations such as this. A standard renter's policy is available through most carriers.

IF 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 rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

Back to 1999 Rental Roundtable Index

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.

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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
Email: rgriswold.ret@retodayradio.com