Legal Q & A by Richard Beckman, Attorney
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 landlordtenant
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 www.beckmanblairllp.com.