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Real Estate Today

Owner's Do-it-yourself Maintenance Might not be Fair to Tenant

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Robert S. Griswold | Steven R. Kellman | Ted Smith
28-May-2000 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (10 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

Q: I own a small rental property. When my tenants move out I regularly do
the maintenance and cleaning myself rather than hire a contractor.
Recently, a tenant complained about the charges and is threatening to take
me to small claims court.

They tell me that they spoke to a tenant/landlord attorney who advised them
that I could not charge for any work that I perform myself. I have always
thought I was saving my tenants money. I want to be fair and avoid going to
court. What do you suggest?

A: Smith -- When it comes to small claims court, anything goes. The judge
or commissioner is in total control. The rules should be consistently
applied but, regrettably, there is no consistency on this issue.

I have spoken to many small claims court judges and commissioners in
Southern California to determine their position. There is a faction that
subscribes to the premise that they will not allow the landlord to deduct
costs for doing their own work.

Under this view, the landlord's work is inherently unreliable and
exaggerated, not done professionally, and not an out-of-pocket expense that
can be awarded for damage to the rental property.

The other faction -- and the correct one -- allows landlords to do their
own work so long as the costs of labor and material are reasonable. These
commissioners realize that the landlord may be saving the resident money so
long as the charges are consistent with an independent handyman's.

So long as the landlord's quality of work and charges are consistent with
the industry, I see no reason why you can't do your own work and charge
that off against the deposit.

Kellman -- As the landlord, you are clearly entitled to deduct the true
cost of repairs and cleaning from a security deposit. When you charge for
your own labor for cleaning or repair, you are attempting to make
additional profit from a renter as if you were a cleaning or repair
professional.

This is not right. You are forcing the tenant to "hire" you to do necessary
work at whatever rates you choose. Who regulates your prices or
qualifications? What happens if, by your inexperience, you make the
situation worse during a repair which doubles the cost? How about the
repair which turns into a costly improvement? Does the tenant pay the extra
cost?

A tenant, or a small claims court judge, may feel that you are biased about
your description of the repair or cleaning costs and that such costs may be
inaccurate or inflated. Therefore, if claimed charges are disputed, you may
have a tough time proving their validity.

Many judges will not award the fees claimed by landlords for their own
labor regardless of the quality of the work. It makes more sense to have
necessary work done by independent professionals, even if it seems that you
were doing the tenant a favor by doing the work yourself.

While Ted has spoken to many small claims judges, I have spoken to many
tenants. Clearly, tenants are more accepting of cleaning or repair charges
from a reputable licensed company than from the cleaning-repairing
landlord.

A rug's life

Q: My former landlord deducted $210 from my deposit for what he said was an
estimate for carpet cleaning. The carpet was never cleaned and is no longer
in the rental property. He replaced the entire carpet in the condo. Can he
do this? If so, would I get my money back if I went to small claims court?

A: Griswold -- Normally, you should not be charged for work not actually
completed. However, every situation must be evaluated based on all of the
particular facts.

To give a thorough answer, several questions come to mind. For example, how
old is the carpet? How long did you live there? What was the condition of
the carpet when you moved in? The carpet condition when you moved out? Did
you damage the carpet or shorten its life expectancy in any way?

The answer to these questions will determine whether the landlord is proper
in deducting any amount from your deposit. Naturally, even if a charge is
appropriate the landlord should accurately label the charge. Thus, a charge
for "carpet cleaning" is dishonest, if they fully intend to replace the
carpet.

Of course, it could also be a legitimate mistake. For example, after the
landlord had sent you your security deposit accounting, the carpet cleaning
company tried to clean the carpet and then advised the owner that the
carpet was too far gone to clean or dye.

A common problem I have seen is when tenants move into a unit with old
carpet and then somehow they damage the carpet. The issue is should the
tenant be charged the full amount for replacing the carpet when they only
lived there a portion of the carpet's life span? No!

However, one possible justification for the landlord charging you $210 is
if you were the "last tenant" on this carpet that had some reasonable life
left, then it is reasonable to charge you for a percentage of the cost of
replacing the carpet, IF you caused any damage to the carpet during your
tenancy. Of course, if you only caused normal wear and tear damage, then
you should not be charged.

For example, if you lived in the condo for 10 years and the carpet was new
and had a 10-year life expectancy when you moved in, then clearly you
should not be charged anything for carpet replacement.

Going to small claims court is always a gamble. It usually comes down to
who is the commissioner or judge pro-tem hearing your case. While some may
tend to be more sympathetic to tenants and some more sympathetic to
landlords, the real key is usually who has documented their case. It is
also expected that the preponderance of evidence supporting the deductions
be placed on the landlord, as they are the business professional.


IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

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Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws.  As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or  intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply.  Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

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Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161

Email: rgriswold.ret@retodayradio.com

2006, 2005, 2004, 2003, 2002, 2001, 2000, 1999, 1998, 1997, 1996 Robert S. Griswold.  All Rights Reserved.
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