Question: I have a rental unit that I have leased out with only a $200 security deposit. I inadvertently rented to a smoker with a small dog. I was aware of the dog, but not the smoking. The tenant seems to be a chain smoker — when I enter the unit to do repairs it smells like an ashtray. He never leaves the door open and the windows are always closed. He hardly lets his dog out and I also noticed that his dog pees on the carpet. I feel that by the end of his lease the carpet will be totally trashed and the smell unacceptable. The deposit is not enough to cover the replacement of new carpets. In the meantime, is there anything I can do?
James McKinley, an attorney for landlords, replies:
Since neither the dog nor the smoking is prohibited by the lease, there is little that you can do at this time. However, in order to avoid further damage to your property, you should give your tenant notice that you do not intend to renew the lease 30 days before the lease expires (or a longer notice if required). After you give your tenant notice of termination of the tenancy, you are required to notify your tenant, in writing, of his option to request an initial inspection of the premises and his right to be present at the inspection. You should also consider meeting with the tenant prior to the end of the lease to give your tenant an opportunity to remedy the identified deficiencies, in order to avoid deductions from the security deposit. After the inspection, you are required to give your tenant a statement specifying repairs or cleaning that need to be completed in order to avoid deductions from the security deposit. After the tenant vacates, you should to give an itemized statement showing how the security deposit was applied to rent, cleaning and/or damages, as required by state or local law. The tenant is still responsible for the costs of cleaning or repairs not covered by the security deposit, but you will have to commence a small claims action or general civil action to recover those damages.
Steven Kellman, an attorney for tenants, replies:
While you are bound by the lease in allowing the tenant to live there with his dog and his cigarettes, you are not forced to allow the continuing damage to your property. Tenants are entitled to many rights, but they must also act responsibly to earn those rights. I would suggest considering taking a course of action now rather than waiting for the tenant to move out. Pet owners and smokers must conduct themselves in such a manner so as not to cause material damage or create such a significant interference with the quiet enjoyment of the other tenants at the property. If this tenant allows his dog to damage the carpet and if he smokes in such a manner as to cause “smoke damage” to the unit, you may demand that he stop both activities right away. This is in the best interests of your property and the neighbors who do not want to be impacted with offensive smells or increased rent to cover damage costs.
You may view the tenant’s behavior as a breach of the part of your lease that requires the tenant to maintain the unit without damaging it. In that case, you would give him a legal notice to cure that behavior thus saving the property and his tenancy. If you feel the damage is significant, you may then try to view the conduct as a nuisance, which may result in a termination of the tenancy with a different legal notice. In either case, the appropriate legal notices can be tricky so advice from an experienced local tenant-landlord attorney is recommended before taking such action. If you are forced to wait to the end of the lease, you should be sure to terminate the lease without renewal and handle the deposit as James advises.
Property manager Griswold replies:
The attorneys seem to have covered what to do at the end of the lease, but I think you are also asking what can you do now and I would like to give you an option. While it isn’t popular with many tenants, you do have the legal right upon proper notice to increase the security deposit from the current $200 to an amount that would be more likely to cover your anticipated costs of repairing the damage that may be caused by the pet and/or the tenant. Make sure that you comply with any local restrictions or maximum amounts, but in most jurisdictions you can simply raise the security deposit upon lease renewal or by giving written notice if the tenant is on a month-to-month rental agreement. The purpose of the security deposit is not just to have funds to cover damages but it can also be an effective incentive for tenants to maintain the property during their tenancy as well as make efforts to leave the property in good condition. Most tenants really want and need those funds when they move. If you ever want to see what damage can be done to a rental unit, rent your property to a tenant and don’t charge a security deposit or, better yet, offer a $99 move-in special!
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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