This article was posted on Sunday, Apr 15, 2012

Question 1: My tenants changed the kitchen by adding cabinets and a dishwasher. Can I make them take it all out?
Answer 1: First of all, I must assume that the tenants did this work without requesting permission from you first. Secondly, if the work was done properly and professionally, one wonders why you would want to have them take it out. But assuming that either the work was not done professionally, or you have a rational reason for wanting it removed, the first place to look for an answer to your question would be the rental agreement. If you have one, and it has a typical provision that prohibits alterations to the unit without the lessor’s prior consent, then the tenants would be in breach of the lease by having done such unapproved work. You could serve them with a three day notice to ˜cure’ the breach by restoring the unit to its prior condition. Normally, a tenant guilty of a breach of lease must be given the opportunity (three days) to fix the breach before she can be evicted for the breach.
In some cases, such as committing a nuisance or unapproved subletting, the governing statute gives the landlord the option of not allowing the tenant an opportunity to cure the breach, and the landlord can simply serve a three day notice to vacate the premises. In some other cases not involving nuisance or subletting, it will be a fact question whether the breach can be adequately cured, or whether it will be considered incurable by its very nature. The case that is cited for this legal point involved cutting down trees, where the lease prohibited it. Obviously, the trees could not be restored, and so there was no point in serving the ˜cure or quit’ notice.
Many cases involving alterations present uncertain facts, primarily being can the unit be restored to its prior condition. And can it be done in three days? When in doubt, I recommend giving the tenants the opportunity to fix the problem, avoiding the legal argument that they were entitled to it but did not receive it, so an attempted eviction action would not be successful. However, in a case such as this one, I would probably recommend simply terminating the tenancy, since it would be unreasonable to have to allow the tenants the ˜right’ to do more work in the unit, which could be of dubious quality, and perhaps inflict significant harm to the unit.
The trickier situation is the one where the rental agreement is an oral one, which would very likely not have any provision “ specifically agreed to by the parties “ prohibiting unapproved alterations. In that case, the analysis would fall more on the ˜is it a nuisance? If the work were done poorly, or without permits, or constituted some other sort of defective effort that harmed the unit or the building, the tenancy could be terminated on that basis, and the tenants held liable for the cost to the lessor of putting the unit ˜right.’
The oddest scenario of all would be one where there is only the oral agreement without any restriction on alternations, and where the work was done professionally and with permits. In that case, assuming the lessor took issue with the alternations, it would be a very fact-specific argument by the lessor that the work was in some way a detriment to the property or the owner’s use of it, justifying a notice of termination for nuisance or ˜waste.’

Question 2: I am wondering how you would define the phrase, “Normal Wear and Tear.” It seems to me that the Legislature, Attorneys, Judges, Realtors. Journalists writing Real Estate Columns, and even Landlords don’t have a clear idea of what this means, and when it comes to deciding whether a tenant is responsible for say, cleaning the carpets, the thinking is muddled and they conclude that this is just a part of “normal wear and tear” – carpets naturally get dirty just from walking back and forth over them, and therefore a landlord can’t charge tenants for cleaning them the way they might charge for a dirty toilet or oven or refrigerator.  This doesn’t make sense to me.  Soil in ovens, toilets, refrigerators come from normal wear and tear, too, but the tenants still are obliged to clean the soil so as to not have deductions taken from their security deposit.  Why would carpets be different?
Answer 2: Normal wear and tear is, as many landlords have likely discovered, and like beauty, somewhat in the eye of the beholder. In other words, what one landlord, or tenant, or judge might find normal wear and tear, another may consider to be excessive use or damage. It is a ˜reasonable person standard’, which a small claims judge or other ˜decider’ will try to apply to any given set of facts or circumstances.
As to the specific question regarding cleaning, the state law that allows the landlord to withhold the tenant’s security deposit expressly includes the right to withhold an amount to compensate the landlord for The cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy. So, if you have good evidence of the condition of the unit when it was rented, and it is noticeably not as clean when the tenants depart, you may deduct from the security deposit a reasonable fee for cleaning it to the condition the tenants received it. However, as your later email follow-up revealed, a small claims judge might side with the tenants anyway, unless the carpet (or stove, or walls, etc) was significantly dirtier than when the tenants moved in.

Question 3: The tenant left damages to the unit that exceeded the security deposit amount. What are my options?
Answer 3: Once you have complied with the statute that requires an accounting of the disposition of the security deposit (written accounting to the former tenant within 21 days of the date the tenant vacated), your primary recourse against the former tenant would be a lawsuit. Assuming you have made a written demand supported by evidence (pictures, contractor bids, receipts etc) and the tenant has failed to satisfactorily respond, if you want to compel the tenant to pay the cost for the additional damages you would need a court order –  called a judgment “ to compel the tenant to pay. You can only get a judgment by filing a lawsuit and winning, or entering into a stipulated judgment with the defendant/former tenant.
Depending on the amount in dispute, you may have a choice where to file your lawsuit. Small claims court is usually preferred for security deposit-type disputes, but if the amount demanded exceeds $10,000.00 you will need to file in the superior court. Both forums allow self-represented parties (in fact, you may not be represented by an attorney in the small claims trial). However, filing a lawsuit in superior court can be challenging, and moving it along to judgment faces many potential obstacles. If the lease provides for recovery of legal fees by the prevailing party, and the amount in dispute is significantly over $10,000.00, and (perhaps most importantly) the former tenant can be located and appears to be financially capable of satisfying a money judgment, having a lawyer file the case may be the best route to recovery of your damages. However, paying  a lawyer to go after relatively small sums can become its own problem, and the phrase ˜tail wagging the dog’ often seems to apply in such cases.

Question 4: My tenant wants to rent out a room in the flat she rents from me, but only wants to rent to another girl. She asked me if that would be ok with me, and I told her I thought it might be against the law to discriminate, but I wasn’t really sure. What should I have told her?
Answer 4: Your instincts were sound, as in nearly all situations it is illegal to seek or extend a preference to one ˜type’ of renter over another (e.g., race, religion, sexual orientation etc). However, recently a federal appeals court held that the choice of a roommate was a private decision protected by the First Amendment freedom of associational privacy and beyond the reach of the fair housing laws. Generally, case law prohibits requiring applicants to disclose their own sex, sexual preference, and whether they had children, or to filter a search for a desired roommate based on such preferences. However, the Ninth Circuit court gave a narrow reading to the definition of dwelling under both the federal and state fair housing laws, and decided that dwelling did not include any situation where living spaces were shared. Because individuals have a constitutional right to freely choose their own roommates, the court reasoned, there would also be no liability to online posting services that assisted the discriminatory preferences of its customers.
And in answer to your question, ˜what should I have told her,’ my suggestion is that unless you are absolutely sure of the law, the best advice is to have her seek her own legal opinion.

Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 19 years, primarily in rent-controlled jurisdictions such as San Francisco, Oakland and Berkeley. He represents clients in a broad range of real estate-related disputes, including partition of co-ownership interests, purchase contract disputes, insurance coverage analysis and land use. Mr. Beckman also specializes in all aspects of landlord-tenant issues, representing landlords and tenants in residential and commercial matters. He can be reached at 415-495-8500; email [email protected] or by visiting the website

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