Landlord challenges ‘normal wear and tear’ clause

Is tenant negligent when property owner has to repaint after 15 years?

Question: Even though I have a property management company handling my rental property I would appreciate your advice. The lease with my tenant is currently pending renewal and I want to change it to exclude maintaining or replacing the refrigerator and stove if they should fail in the future. The appliances are approximately 8-10 years old. What do you think of this idea? Also, I recently visited the property to see the new carpeting I had installed. The tenants were not present and I needed to use the bathroom and to my surprise the paint was peeling off the walls. The bathroom was professionally painted only 15 years ago when my husband and I and our two sons lived in the house. We had never had to repaint during the 28 years we lived in the home. The tenant has not reported the paint problem to the property management and I think it is because they obviously do not clean thoroughly, as I could tell the exhaust fan was dirty because of the sound it makes. I shouldn’t be penalized for their poor housekeeping. How do I address this?

Property manager Griswold replies:

It is definitely possible to include a specific disclaimer in a new lease or lease renewal providing that the current refrigerator and/or the stove are included in their “as is” condition without any express or implied warranties and they will not be serviced or repaired if they should not operate properly or fail. However, I would not recommend this policy, as a dispute is very likely to occur regardless of how legally binding or enforceable your disclaimer language in the lease. When the appliance breaks, your tenants may not be in the position to immediately replace the appliance or they will expect you to decrease the rent since they have had to provide an appliance that is typically included in the local rental market. The other issue is that the stove is typically a built-in unit that is provided in virtually all areas whereas a landlord-provided refrigerator is more a local rental market issue. Therefore, I would strongly recommend that you provide the stove and retain full responsibility for its proper maintenance and repair. The stove is mostly modular and replacement parts should be readily available to keep it going for at least 5-10 more years. Of course, if the tenants are responsible for replacing the stove they are most likely to purchase the least expensive model or even a used appliance. You could also run a serious liability risk in the event that the “new” stove malfunctions and starts a fire and/or injures someone.

Landlords have more latitude with refrigerators. Refrigerators have life spans of 10-12 years and thus it is much more likely that you will need to replace the refrigerator before the stove. Nonetheless, I still would advise you to stick with your current policy of providing both a stove and refrigerator and retaining control of their servicing or replacement. Your concern that the tenant is not properly cleaning the home and thus the paint is not holding up is ridiculous. The paint products currently on the market do not have the same lifespan as when you personally occupied the home and your home may qualify for the paint museum if you have indeed not painted the interior in 28 years. For environmental and health and safety reasons, lead-based paint products were eliminated in the late ’70s, and currently most paints are water-based and have a shorter life expectancy. Therefore, the peeling of 15-year-old bathroom paint seems to be well within the concept of “normal wear and tear,” and I would suggest that you offer to repaint the bathroom as part of the unit upgrades you are performing in anticipation of your tenants signing a lease renewal.

Question: If a tenant does cause a fire accidentally in a rental house, can landlord hold them responsible for repairs to the building, or would landlords insurance have to pay for damage?

Property manager Griswold replies:

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The tenant can definitely be held financially responsible if he/she were responsible or negligent. Many times the landlord’s insurance company will step in to quickly make the necessary repairs and get the rental house back online. Then they will subrogate their claim against the individual or party that was the actual cause of the fire. Thus, if the tenant or his/her family or guests cause the fire, then the insurance company will seek full restitution and recovery of all their costs from the tenant or the tenant’s insurance company. Just another reason why all tenants should have adequate renter’s insurance, including fire and general liability coverage.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and Ted Smith, principal in a firm representing landlords.”

Email your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

Questions should be brief and cannot be answered individually.

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