Can My Landlord Make Me Pay To Replace The Carpet?

Can My Landlord Make Me Pay To Replace The Carpet?

Can My Landlord Make Me Pay To Replace The Carpet?

When we moved in, our landlord warned us that the carpet ‘easily stains’ so we must take our shoes off. We do but after two years of living there, the carpet is definitely worn down.

Now she claims that the carpet should not be so dirty & that our upstairs neighbor has the same carpet that is very clean. We also have had a few accidents which we know we are responsible for- a few burn marks & a nail polish stain. The landlord is claiming that because of how dirty the carpet is in addition to the marks, we will be responsible for replacing the entire apartment because she does not want ‘seams’!

If the carpet is thoroughly cleaned when we move out, and all that remain are the few marks we are responsible for, can she make us replace the entire carpeting?

Ah, carpets…one of the big three, along with hardwood floors and ovens. If all landlords are attracted to a dirty ovens like Sylvia Plath, they become vengeful Aladdins when they suspect that tenants have diminished the magic of the wall-to-wall.

Carpets and drapes – “useful life” rule

Ordinary wear and tear to carpets, drapes and other furnishings cannot be charged against a tenant’s security deposit. (Civil Code Section 1950.5(e).) Ordinary wear and tear includes simple wearing down of carpet and drapes because of normal use or aging, and includes moderate dirt or spotting. In contrast, large rips or indelible stains justify a deduction from the tenant’s security deposit for repairing the carpet or drapes, or replacing them if that is reasonably necessary.

One common method of calculating the deduction for replacement prorates the total cost of replacement so that the tenant pays only for the remaining useful life of the item that the tenant has damaged or destroyed.

The dispositive question one must ask is, “How old is the carpet?” That’s important because carpets don’t last forever.

How do you determine the approximate age of your carpet?

The landlord inadvertently tipped you off that the carpet would be a problem when you moved in. At that point, you should have casually asked the landlord when the carpet had been installed. Generally, tenants should ask this type of question before moving in and take comprehensive photos of a unit before they unload their furniture.

If you are planning to have the carpet professionally cleaned, you have another opportunity to get an estimate of the carpet’s age—ask the carpet cleaner. If you can, get them to sign a letter or declaration stating their opinion about the condition and age of the carpet. If the cleaner is reluctant, either find someone else who will attest to the carpet’s age or ask them to simply note it on the invoice—”Steam clean 50 year old shag carpet, with special raking of Acapulco Gold and Windowpane residue.

How can you calculate the useful life of carpets?

Landlords are allowed to deduct the annual depreciation of items like appliances and carpets from gross income for tax purposes.

IRS Tax Publication 527 provides information regarding expense deductions, including allowable depreciation schedules, for residential rental property. Table 2-1 on page 9 of the publication shows allowable depreciation of property used in rental activities. Using the general depreciation system carpets have a usable life of 5 years. Using the alternative depreciation system, carpets have a usable life of 9 years. (IRS Tax Publication 527, page 9, Table 2-1.) Most landlords use the general depreciation system.

For example, suppose a tenant has truly damaged a carpet beyond ordinary wear and tear (hard to prove), an eight-year-old carpet that had a life expectancy of five years would be worth nothing, zero, zip, nada. The landlord has to eat the replacement cost despite the damage beyond ordinary ware and tear.

Using the same example, with a life expectancy of nine years and if a replacement carpet of similar quality would cost $2,000, the landlord could properly charge only $222.22 for only one years’ worth of life (use) that would have remained if the tenant had not damaged the carpet.

In your case, we know that the carpet was not new when you moved in. Assuming that the carpet is three years old, and the small marks to which you refer do not constitute ordinary wear and tear (highly unlikely), you could be liable for 40% of the replacement cost of a similar carpet.

This isn’t legal advice, but I’ve repaired carpets myself. One can do things like carefully trimming off the burned top of the pile on the carpet. Or, cutting out a little piece of the carpet in a closet and gluing it in a small stained area that one has carefully removed like a hair plug. I’m talking small area here, like at most an half an inch square. Don’t try to replace the blood stains from a Goodfellas-style beat down.

Ask an expert. There are plenty of tricks to repair carpet that won’t involve a security deposit deduction.

Make sure you take photos when you move out. If the landlord attempts to deduct from your security deposit, go to the San Francisco Tenants Union to discuss how you can sue her for maximum damages.

Finally, ask yourself, “What kind of landlord would install carpets in a rental unit that easily stain except a Cheese Ball who charges her tenants to pay for replacement every time they move out?” A Cheese Ball who pockets the cost, doesn’t replace the carpets, and still deducts the depreciation from her taxes, that’s who.

Call the Tenant Lawyers now for a free consultation.
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Grand Theft Security Deposit Again?

Grand Theft Security Deposit Again?

Grand Theft Security Deposit Again?

I recently moved into a rent controlled building in SF.  During the application process, an erroneous community judgement appeared on my credit report, and despite my showing it had been removed from my other two reports by the respective reporting agencies, I was required to pay double the normal deposit amount.

Ten business days later, I have received notification from the 3rd and final reporting agency that the error was permanently deleted without equivocation and requested my management company apply the excess portion of my security deposit toward a month’s rent.

They are refusing, without explanation, despite over-charging me on the deposit based on information proven to be false.  Do I have any recourse before the end of my lease term to be reimbursed for this additional amount?  This is not instilling me with confidence that they will employ fair practices upon my move out regarding returning my deposit overall.

Why would you ever have any confidence that a landlord will return your security deposit?

A report complied by Tenants Together entitled No Deterrent: Improper Security Deposit Withholding in California states:  “[I]in excess of $1 billion of deposit money annually is either returned to or withheld from California tenants.” The report also found that 60% of tenants reported that they had experienced unfair withholding of some or all of their deposit. It’s fair to say that hundreds of millions of dollars a year are flat out stolen by landlords.

Yet, as Dean Preston wrote last year, after our legislative griftocrats failed to pass a law enacting minor reforms to the security deposit statute (California  Civil Code section 1950.5), the California Senate denied tenants basic protections that Alabama tenants have.

If you rent an unfurnished apartment, your security deposit cannot exceed twice the monthly rent or three times the monthly rent for a furnished unit. (Civil Code §1950.5(c).) That’s why landlords typically collect a total of three times the rent upon signing a lease (first month’s rent plus maximum security deposit.)

If the management company has collected more than the legal amount, demand that the excess be returned and threaten to sue if it is not returned immediately.

Civil Code §1950.5(l) states in part:

The bad faith claim or retention by a landlord or the landlord’s successors in interest of the security or any portion thereof in violation of this section […] may subject the landlord or the landlord’s successors in interest to statutory damages of up to twice the amount of the security, in addition to actual damages. The court may award damages for bad faith whenever the facts warrant that award, regardless of whether the injured party has specifically requested relief. In an action under this section, the landlord or the landlord’s successors in interest shall have the burden of proof as to the reasonableness of the amounts claimed or the authority pursuant to this section to demand additional security deposits.

Usually this part of the statute is applicable to lawsuits for unreturned deposits after a tenant has vacated, but I don’t see why it couldn’t be used in your case, if the landlord collected too much money at the outset of your tenancy.

FYI, one of Mark Leno’s proposed revisions to the security deposit law last year simply changed “The court may award damages for bad faith…” to “The court must award damages for bad faith…” In this example, a court has already found bad faith, why shouldn’t it be required to punish that bad faith? Could it be that bad faith is standard operating procedure for landlords?

No Deterrent reported that tenants prevailed in over 70% of the cases that went to judgment, yet in only 3.5% of the security deposit cases filed by tenants was a landlord assessed a penalty by the court. Landlords steal hundreds of million of dollars from tenants every year and get away with it, aided and abetted by our so-called representatives who will not cross their real estate industry/landlord masters, despite a showing of bad faith–grand theft.

Of course, if the landlord collected an amount that falls within the legal limit, you will have to wait till the end of your tenancy to sue them…and yes, given their behavior now, you will have to sue them. Reread “Grand Theft Security Deposit” for a list of actions to take to avoid losing your deposit at the end of your tenancy.

Note on the image: I found this image on the web almost five years ago. It was a nineteenth century image of a kid picking a rich dandy’s pocket. I contacted my friend, the artist Francis McIlveen, to retool the image to show the dandy picking the kid’s pocket to illustrate my first “Grand Theft Security Deposit” post. It’s still apropos. The rich still steal from our children and landlords still steal security deposits from tenants.

Call the Tenant Lawyers now for a free consultation.
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“What Lie Can We Get Away With This Month?”

“What Lie Can We Get Away With This Month?”

“What Lie Can We Get Away With This Month?”

As we’re getting ready to move out of the house, the landlady is saying “there’s no deposit” because 2 years ago a tenant who doesn’t live here anymore asked to pay reduced rent over a couple months. Landlady agreed and never said or put anything in writing to anyone about wanting the back rent repaid until now, two years later. Isn’t she supposed to request repayment within one year?

I’ve received a couple of questions similar to yours in the last month or so. I also spoke to a tenant on the telephone about a landlord who claimed she couldn’t refund a security deposit for exactly the same reason. Different landlords, different tenants. What’s up?

Sometimes I wonder if there’s a “What Lies Can We Get Away With This Month?” working group of the Simple Minded Apartment Association of San Francisco. But that would be paranoid wouldn’t it?

Because landlords are not required to deposit security deposits in separate accounts, they’ve already spent your money. Landlords have forgotten about your security deposit. Why haven’t you? It comes as no surprise that a new lie to justify withholding a security deposit would surface from the landlords’ collective subconscious. This seems to be the bullshit du jour.

Fortunate for you that this merde doesn’t bake well.

California Civil Code §1950.5(k)(1) states in part: “In any action under this section, the landlord or the landlord’s successors in interest shall have the burden of proof as to the reasonableness of the amounts claimed or the authority pursuant to this section to demand additional security deposits.”

Absent an agreement or other written proof, the landlord cannot meet her burden to prove that her “deduction” ever took place.

I am not aware of any requirement to request payment in a year. You may be confused with the requirement that a three-day notice to pay or quit can only demand rent going back one year.

When you write your demand letter, remind the landlord that she could be liable for statutory damages of twice the amount of the original security deposit for her bad faith claim.

Permit me to rant for a moment. Earlier this year State Senator Mark Leno introduced a bill (SB 603) to amend the security deposit law to include, among other things two issues I’ve noted here. It would have required landlords to keep security deposit in separate accounts and to pay interest on the amounts. It would have also required that a court must award statutory damages with a finding of a bad faith claim or retention of a security deposit. The current law says “may” and statutory damages are only assessed in about 3.5% of cases. The bill was defeated by Democrats! I can go on and on about fucking Democrats. Suffice it to say that Democrats are not necessarily tenant-friendly.

If landlords know they can lie to their tenants and the court about retaining a security deposit and only get a slap on the wrist, why wouldn’t they lie? Look out for more excretum tauri.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

Can My Landlord Keep My Deposit Because He Wants To Replace The Range Hood?

Can My Landlord Keep My Deposit Because He Wants To Replace The Range Hood?

Can My Landlord Keep My Deposit Because He Wants To Replace The Range Hood?

My landlord is trying to hold all of my deposit and charge me even above the security deposit by replacing the range hood in the kitchen and cleaning the ceiling and walls in the kitchen due to excessive oil.

We’ve hired a professional cleaning company to clean the whole house, maybe these spots are not in very good condition even after cleaning. Should we pay for that?

We’ve been living there for more than 7 years.

He also charged me for painting of $1500 for the whole house because of the kid’s drawing on the wall on the first floor.

Should I pay for that? Or just a percentage of that since I’ve been living there for a long time?

BTW, I live in San Jose.

Whenever I write about security deposits, my comments can be applied to any tenant in California because state law governs the collection and return of security deposits. Almost all of my answers are based on my reading and interpretation of California Civil Code §1950.5, which applies to all California tenancies from Weed to Chula Vista, even San Jose.

San Francisco tenants enjoy an additional local right to collect interest on their security deposits, but they’re still governed by Civil Code §1950.5 for everything else.

The first thing you should do id re-read “Grand Theft Security Deposit.” Then take a at a recent column in which I addresses a common problem–the landlord uses the tenant’s money to remodel. Check out “Tenant Troubles: Can My Landlord Make Me Pay To Replace The Carpet?”

Civil Code §1950.5 provides that a landlord can deduct from a security deposit, costs associated with repairing damages that are over and above those associated with ordinary wear and tear. Unless you took a sledge hammer to the range hood, the landlord cannot blame you because the hood needs to be replaced. In fact, you can point out that any excess grease was caused by the defective hood if it wasn’t ventilating properly.

If some areas in the house just cannot be cleaned they also may simply be the result of ordinary wear and tear.

The kid’s drawing is another issue. Certainly the landlord can deduct any cost associated with repainting that wall, but I don’t believe he can justify painting the whole house.

The landlord is required by law to provide you with a list of deductions. If you feel they are unfair, write a letter to the landlord and demand that he return the portion to which you are entitled. Give him five days to return the money and tell him if he does not do so you will sue him for your actual damages plus twice the amount fo the security deposit for withholding your money in bad faith.

When the landlord does not respond, file a small claims lawsuit against him. Pick up a copy of Everybody’s Guide to Small Claims Court in California, by Ralph Warner for Nolo Press. This book will guide you, step by step, through the process.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

Do I Have To Give My Landlord My Pot Rack?

Do I Have To Give My Landlord My Pot Rack?

Do I Have To Give My Landlord My Pot Rack?

I rent a single-family house in SF and gave 30-day notice to vacate.

My question is about the pot rack I installed in the kitchen. It was attached to a 2×4 that I screwed to the wall and then I screwed the pot rack to that. The Landlord said it is not allowed in my lease therefore it is now part of the house.

The landlord said the same thing applies to the towel rack and curtain rods that are screwed into the walls.

I want to keep my things. Can I fix the holes and expect my security deposit ($2500) back? What right do I have? What right does the landlord have?

Must be a great pot rack…at least your landlord thinks so. That’s why he wants it. The landlord’s rationale to steal your pot rack has been employed by the rich and powerful and two-year-olds for eons–I want it, so now it’s mine and here’s a rule I just made up to justify my keeping it.

Your landlord’s interpretation of the law is self-serving and illogical. Using his reasoning, does that mean that your dog, Brian, stays with the house because there is a “no pets” clause on the lease? Well, that may be a stretch unless the talking dog is tacked to the wall, but you can see what I mean. If the pot rack was an unwarranted alteration in violation of the lease, your landlord should have demanded that you remove it.

To be fair, your landlord is misstating a concept that applies to the sale of a house. If something is attached to the house like a light fixture or a pot rack it can be considered a fixture that must be sold with the house.

Say I’m a prospective purchaser. I view the house and love the pot rack. In fact I love the pot rack so much, I’m willing to spend an extra $100,000 on the place. (I’m a typical, irrational, San Francisco buyer with loads of Twitter dough.) I purchase the house and when I move in, the pot rack is gone. I have the right to claim the pot rack as a fixture and sue the seller. Of course, had your landlord been the seller, he would have removed the pot rack and installed it in his own kitchen before he put the house on the market.

California Civil Code §1950.5(a)(2) states that a landlord can deduct money from a tenant’s security deposit for “the repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant,” not for an unwarranted alteration.

If the pot rack was your addition to the kitchen, take it down, remove the 2X4 and carefully repair any holes left in the walls. You should also touch up and/or repaint the affected wall with the exact, original paint color. You can take a paint chip to a paint store and get a match.

Either that, or offer to sell the pot rack to the landlord.

If you replaced old towel racks and curtain rods with new racks and rods, you should have saved the old ones to reinstall.

The “fixture” rule does apply to items you removed and replaced. You cannot leave a hole in the wall where you substituted a light fixture, but failed to save the old one to reinstall. Same with curtain rods and towel racks. You cannot leave a blank wall, even completely repaired, if there was something on the wall that was included in your original lease.

Frankly, sometimes it’s easier. less time-consuming and less expensive to leave items like curtain rods and towel racks. That is, unless you installed some Pottery Barn racks that set you back half a month’s rent.

Take photos of questionable areas before you move.

If the landlord keeps your security deposit and you sue him in Small Claims Court, imagine a scenario in which the judge asks the landlord two questions. Did the house come with a pot rack? Is the area where the pot rack damaged in any way? If the judge fails to ask those questions, request that she ask them.

If you are considering suing the landlord, take your documentation to the San Francisco Tenants Union and ask them to advise you how to proceed.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

Can My Landlord Hang On To My Deposit For Utility Bills?

Can My Landlord Hang On To My Deposit For Utility Bills?

Can My Landlord Hang On To My Deposit For Utility Bills?

My husband and I vacated an apartment in the Marina district in May.  We paid rent for 6 days more than we stayed in the apartment We have not received our deposit back even though California law states the landlord has 21 days.  

When I followed up with the landlord he said he is working on tallying up the bills for the past 15 months to deduct from our deposit and he just received some of the last month of bills.  Our rental agreement states we would pay 2/3’s of certain bills (water, garbage, electricity for the garage, cable) because he lived in the unit above by himself and there were 2 of us.

We were disappointed he did not give these bills to us monthly and is now deducting from our deposit. We had requested these bills multiple times while living in the unit and he always said he would work on putting a spreadsheet together showing what we owe and never did.  Unfortunately, we do not have any of these requests in writing.  

I am guessing he is legally allowed to deduct these from our deposit, but would appreciate confirmation.  Additionally, does the 21 day rule not apply since he was waiting to receive a utility bill?

I don’t think Civil Code § 1950.5, the statute dealing with the collection and refund of security deposits, is applicable to collect utility bills.

California Civil Code § 1950.5(b)(1-4) allows the landlord to deduct from the  tenant’s security deposit for four purposes: (1) For unpaid rent; (2) For cleaning the rental unit when the tenant moves out, but only to make the unit as clean as it was when the tenant first moved in; (3) For repair of damages, other than normal wear and tear, caused by the tenant or the tenant’s guests; and (4) If the lease or rental agreement allows it, for the cost of restoring or replacing furniture, furnishings, or other items of personal property (including keys), other than because of normal wear and tear.

In other words, there is no provision in the code to deduct utility bills from a security deposit.

The short answer to your question is that the 21-day period does apply. You can send a demand letter to the landlord requesting the return of your security deposit in, say, five days, and remind him if he fails to pay, you’ll sue him in small claims court for the deposit plus twice the amount of the deposit as statutory damages.

A more complex analysis will, however, recognize that the landlord will be able to file a cross-complaint for the utility bills if you sue him for the deposit.

I think you should send the landlord a demand letter if only to get him off his ass. If he provides the bills, they are accurate and you do owe the landlord, make an arrangement to settle the whole thing.

Check in with San Francisco Tenants Union to get advice about what to include in your demand letter.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

Are There Penalties For A Late Security Deposit Interest Payment?

Are There Penalties For A Late Security Deposit Interest Payment?

Are There Penalties For A Late Security Deposit Interest Payment?

I have lived in a 4-unit building in San Francisco since 1990 that was built in the 1920’s.   My building has been sold and the new landlords are doing an OMI eviction in my unit (longest term tenant, lowest rent, other vacant but different units in the building).   I paid a $950 deposit in 1990, but have never received any interest.  

My question is this:  since I have never received interest and the landlord had my money all of these years, making interest, is there some provision for receiving for getting a higher payment because they kept my interest payment?

There is no penalty for late payment in San Francisco Administrative Code Chapter 49 which governs security deposit interest in San Francisco. In fact, Administrative Code § 49.3 only provides:

The rights, obligations and remedies of tenants and landlords under this Chapter shall be as provided in Subsections (f), (g), (h) and (j) of Section 1950.5 of the California Civil Code.

It is important to understand that the new landlords will be obligated to refund your security deposit and interest if you vacate and deliver the premises in good condition absent ordinary wear and tear. California Civil Code § 1950.5(h) provides that method by which a security deposit (plus interest in San Francisco) must be transferred from a former owner to the new owner. If the transfer is done correctly the new owner steps into the old owner’s shoes. (California Civil Code § 1950.5(k).)

If the security deposit is not transferred from the old owner to the new, the new owner will still be “jointly and severally liable with the landlord for repayment of the security deposit.” (California Civil Code § 1950.5(j).) In case the new owners do not return your security deposit, this section means that you should sue both the old owner and the new one.

To figure the interest on deposits, I have been using the “SF Security Deposit Interest and Rent Board Fee Calculator” from ReLISTO.com. You can find it and many other useful listings for tenants on the Crow & Rose Tenant Resources page.

Using a hypothetical January 1, 1990 date for the inception of your tenancy., the interest owed on your deposit would be $637.11. That includes a deduction for payment of half of the Rent Board fees since 1999, a deduction landlords are allowed to bank and deduct from your deposit (that is, if the fees were paid.)

Should the Board of Supervisors enact a penalty for that late payment of security deposit interest in San Francisco? Perhaps.

But if you’re pissed off about that, then you should take a look at the list of security deposit law reforms for California that  I suggested back in 2009, only one of which has been passed–raising the small claims court jurisdictional limit to $10,000.00.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060