Q: When our tenants moved out, we inspected their apartment for damage. We discovered that all of the draperies and curtains, as well as the rug, smell strongly of cooking spices (I think it’s curry). These tenants must not have used the kitchen fan nor opened the windows — the place really reeks. Can we deduct from their deposit the cost of replacing these items? We think the tenants were selling what they made — we saw a food truck parked in front of the unit several times. –Dort and Walt H.

A: Landlords may use the security deposit to cover damage that goes beyond normal wear and tear; and they can use it to perform needed cleaning. On the second item, a few states, such as California, specify that the tenant must leave the unit as clean as it was when the tenant moved in. Other states aren’t as specific as to the meaning of "clean," leaving landlords, tenants and often judges to resort to their own definitions.

In your case, the question is whether the "scented" window coverings and rug are damaged beyond normal wear and tear; or, alternately, whether the odor renders them unclean. If I were a judge, I’d want to know whether normal ventilation, including the use of the kitchen fan, would have prevented the problem.

Does the kitchen fan have enough power to really move the air into the flue, and is the flue clean and unclogged? Is there enough cross-ventilation to let the rooms air out? If you can say that prior residents left the unit without lingering cooking odors, that’s some evidence that normal cooking would not result in the issues you’re now dealing with.

Now let’s consider your suspicion that your tenants may have been running a commercial operation, perhaps supplying food to a food truck. First, does your lease specify that the premises may be used for residential purposes only?

If so, and if your tenants were in fact using the kitchen for a commercial enterprise, you could have stopped the whole thing by insisting that they comply with the lease or move out.

It’s too late to send a "cure or quit" notice; the tenants are already gone. But if you end up in court, be careful how you use this evidence of commercial cooking. The tenants’ violation of the lease clause does not in itself entitle you to deduct from the deposit the amount you need to replace coverings and rugs.

It does, however, relate to whether the damage goes beyond normal wear and tear. "Normal" tenants use the kitchen for family meals and occasional entertainment; they do not use it for producing commercial quantities of food. This alone might move your tenants’ cooking, and its consequences for the coverings and rugs, out of the realm of normal use.

Q: We’ve been asked to sign a long lease that has a very odd clause in it. It says, "Landlord is not liable to tenant if anyone is not permitted or is refused entry into the building." What do you think this is all about? –Abe B.

A: Your landlord may be worrying about litigation if the doorman, manager, supervisor or anyone else with authority attempts to limit entry to people other than residents. But it’s an odd clause, and probably worthless, because attempts to limit one’s liability in advance have to be carefully, clearly and narrowly drawn; and they will not be enforced if they are against the law or public policy.

This clause is anything but carefully worded — it attempts to absolve the landlord of liability to the tenant if "anyone" is refused entry, and does not specify the circumstances. …CONTINUED

What could management be worried about? Perhaps it wants to limit guest stays, and wants the ability to refuse entry to someone who appears to have morphed from a guest to an unauthorized occupant. The way to handle this concern is to use a lease clause limiting guest stays, and to make it clear that overstaying the limit will result in a "cure or quit" notice delivered to the tenant.

Landlords who try to physically prevent the presence of a long-term guest by literally barring the door are acting clumsily and dangerously, inviting a pushing match or, worse, a claim by the guest that he has indeed become a co-tenant of his host, and is now at the receiving end of an illegal self-help eviction.

Management may also be concerned about the "types" of people who will be on its property, and may want the ability to bar visitors who appear odd or different. Again, a poor choice of methods. As many a landlord has learned, people who are treated differently because of how they look (rather than how they behave) can often fit themselves into one or more "protected classes" of people who can claim a violation of fair housing laws.

Importantly, the tenant who isn’t allowed to have a guest solely because of the guest’s race or other protected characteristic can himself bring a discrimination lawsuit, on the grounds that he has been deprived of the excluded person’s company. The clause in your lease, which attempts to head off such a lawsuit by a tenant, will not be enforced by a judge.

If management is worried about the behavior of people on its property, it will have to take a more commonsense approach to the problem. Staff should be trained to look for behaviors and actions, not appearances, that reasonable people would think signals violations of the lease (such as unapproved new residents) or danger ahead.

A young person covered in tattoos and body jewelry should not be assumed to be a troublemaker; but someone who happens to look like that and also disrespects property and house rules can legally be asked to leave.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.


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