Renting and the Law: What's ordinary wear and tear?
- Article by: KELLY KLEIN
- April 12, 2013 - 2:44 PM
Q: My husband and I own income property, which consists of two apartments in the same duplex. The renters are a woman, who lives in the upstairs unit, and her daughter, who resides in the lower apartment. Both tenants will be vacating soon.
The carpet in the lower apartment has been loosened, causing ripples in it. We think this was caused by moving something heavy over it. There is also a small area where something hot apparently was put on the carpet, causing slight melting of the carpet fibers. It is in an area where furniture cannot cover the flaws.
We have a policy that we take pictures of all the rooms and areas before and after tenants move in or out, and the pictures clearly show that the carpet was in very good condition when she moved in. We noticed this area when we went through the duplex last summer for city inspection in order to get our license. I mentioned the carpet flaws to the tenant, but she didn’t seem concerned about it.
What is our responsibility as landlords, and what is her responsibility as a tenant, to cover carpet damage? We don’t believe it would be considered normal wear and tear. Even if we could get the carpet stretched, the area where the hot item was put doesn’t look good. I think any prospective renters would notice it, and it could cause us to lose a new tenant. Since the “before” pictures show that the carpet was in good condition and didn’t need to be replaced, can we keep her security deposit to cover the expense of putting in new carpet?
We also painted the basement floor before the mother and daughter moved in. However, we have noticed, during our visits to the duplex, that the paint has been scratched, possibly when heavy items were moved across the floor. To us, that is not normal wear and tear, either. May we keep some of the deposit to buy more paint to fix the floor? We also have pictures of the newly painted floor before they moved in. We are hoping you can give us some information that we can then give our tenants in regard to these issues.
A: Minnesota law allows a landlord to withhold amounts from the tenant’s security deposit that are “reasonably necessary” to restore the apartment to its condition at the start of the tenancy, excluding ordinary wear and tear. The burden of proof for withholding any or all of the tenant’s security deposit is on the landlord. Whether or not the loose carpet is considered more than “ordinary” wear and tear, the hot spot in the carpet probably renders the carpet destroyed, and likely would be considered more than wear and tear.
Many landlords will apportion or amortize the cost of new carpet over the useful life of a carpet, usually determined by the depreciation schedule adopted by the landlord. In other words, if the carpet is four years old, and you are following a seven-year depreciation schedule, then most courts feel it is reasonable to charge a tenant 3/7th of the cost of a new carpet if the carpet is substantially ruined. If the carpet has been fully depreciated, then the landlord may not be justified in charging for a new carpet.
The damage to the floor also may or may not be considered normal wear and tear. If you think the scratches rise to the level that repairs are necessary, you can probably charge for a touch-up; if the touch-up will look unsightly unless the entire floor is painted, then you can probably charge to repaint the entire floor.
Kelly Klein is a Minneapolis attorney. Participation in this column does not create an attorney/client relationship with Klein. Do not rely on advice in this column for legal opinions. Consult an attorney regarding your particular issues. E-mail renting questions to firstname.lastname@example.org, or write to Kelly Klein c/o Star Tribune, 425 Portland Av. S., Minneapolis, MN 55488. Information provided by readers is not confidential.
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