Question: I am a landlord and have a situation regarding the return of our tenants’ security deposit. We have had the same tenants for more than six years and they recently renewed a two-year lease. However, six months into the lease they purchased a home. They notified us of their intent to vacate the middle of last month. We found a tenant to take possession within 30 days, and between the time our old tenants moved and our new tenants moved in we repainted the home and installed new carpets.
Over the years the old tenants had three children and acquired five dogs. The house was very dirty and the dogs urinated all over the original carpets. I returned their security deposit minus the half month’s rent for the 15 days of their last month that they didn’t pay. We did not deduct any damage or cleaning fees, which we could have. Now these tenants are insisting we return the entire security deposit because it’s not their fault we had to paint and put new rugs down — that’s “average wear and tear on a home.” Also, they claim we should have had the property rented in less than two weeks. Am I crazy or are they being totally unreasonable?
James McKinley, an attorney for landlords, replies:
The good news is that you are not crazy — at least not in your opinion — that your former tenants are being totally unreasonable. A tenant who breaks a lease is responsible for rent up until the lease expires or the landlord finds a new paying tenant, whichever comes first. Your former tenants were lucky that you found a new tenant so quickly. A security deposit can be used to remedy defaults in rent, cleaning, and to repair damages in excess of ordinary wear and tear. In addition to applying the security deposit to the unpaid rent prior to when your new tenant moved in, you could have also charged your former tenants for cleaning and repairing the damage they caused, and their three kids and five dogs. Your former tenants may try to take you to small claims court to recover the remainder of their security deposit, but based on these facts, they have no valid claim for the return of the remainder of the security deposit.
Question: I rent an older home where the storm windows are missing and most of the outside windows are cracked or broken, thus letting in a lot of “cold” air. What obligation does the landlord have to fix the leaks around the windows? I try to keep my thermostat down even though it does get pretty chilly from the wind blowing in. I live in Oklahoma where the “wind comes over the plains” most of the time.
Steven Kellman, an attorney for tenants, replies:
You raise an interesting question and one that illustrates the importance of knowing the tenant-landlord laws specific to your rental unit and why it is important to consult with an experienced attorney in your area. A quick review of the tenant-landlord statutes in Oklahoma (also true in some other states) indicates that the relevant laws and codes are very general as to maintaining the dwelling. The landlord simply needs to make all repairs and do whatever is necessary to put and keep the tenant’s dwelling unit and premises in a fit and habitable condition. Since the law in your state seems to go no further, one must wonder if having broken windows that allow cold wind to blow into the house actually violates the law. A common-sense evaluation would conclude that it does.
However, in many other states, the laws are much more specific and leave less to chance in determining what is acceptable versus substandard housing. Here, you could rely on a specific law that covers your situation. For example, in California the landlord must maintain the dwelling with “effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.” Therefore, broken windows allowing the wind to become an unwelcome guest are a violation of that law.
If you have such broken windows, regardless of where you live, notify your landlord, in writing, requesting repairs. If the landlord refuses to do so, you need to take action. In some jurisdictions, you may repair the windows yourself and than claim reimbursement from the landlord or you may be able deduct the cost from the rent. Before taking any such action, seek legal advice as to your remedies to protect your rights and avoid an eviction.
This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and James McKinley, principal in a law firm representing landlords.
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