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posted: 9/16/2012 5:10 AM

Tenant claims flat paint made cleaning walls impossible

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Q. We recently moved out of a rental apartment after two years. We did the walk-through with the on-site manager and videotaped it. Now the property management company wants to keep $200 of the security deposit for painting. They say we are responsible for one-third of the cost of the repainting because we didn't stay in the apartment for a full three years.

We feel we left the apartment in perfect condition aside from normal wear and tear. The walls couldn't be scrubbed because it is flat paint.

Is it true that we can be charged for the painting because we were in the apartment for two years?

Even though it is only for an initial term of one year, the lease stipulates that we would have had to stay in the apartment for three years to incur no cost for repainting. We are very upset and want to know if their policy is legally enforceable?

A. The answer to your question is not cut and dried, but subjective. It seems your landlord is proposing an incentive that you will not be charged if you stay in the rental unit for a minimum of three years. There is nothing inherently wrong with a landlord offering such a guideline, but that doesn't automatically mean that you can be charged if your tenancy is less than three years.

Further, I am not aware of any law that dictates the landlord has to repaint the interior of your rental unit at any specific interval, such as every three years. So their policy isn't based on some rental housing industry standard that all interior paint must be repainted after three years.

The bottom line is the rental unit needs to be habitable, and that could mean the unit needs repainting within three years or maybe even more often if the paint is peeling or flaking or seriously worn. Of course, if quality paint was applied in a professional manner and you treated the property very carefully, then repainting may not be necessary until after three years. The key is going to be (just like any other deduction from a security deposit) the condition of the rental unit at the time you moved in versus the time you moved out.

You raise an excellent point about the type of paint the landlord chose to use. The quality of the paint is another variable in the determination of the "reasonable wear and tear" allowance for your two-year tenancy. The fact that the rental unit was painted with flat paint that cannot be reasonably cleaned but must be repainted is certainly a factor in your favor. But that would only be true if the markings on the wall are light and would have been washable if an enamel or washable paint were used.

In other words, if the damage to the flat paint would have damaged enamel paint as well, then you cannot reasonably blame the landlord's choice of nonwashable, flat paint.

From the landlord's perspective, there is nothing unusual about using flat paint, and many landlords use a flat or nonglossy paint for some or even all areas of their rental units. A three-year expected life span for flat paint is not unreasonable in most rental tenancies. Again, the landlord is agreeing to pay for two-thirds the overall costs for repainting your rental unit based on your tenancy of two years so you are getting a break by not paying the full cost.

But you know the condition of the rental unit walls at the time you moved in and the time you vacated. So if you believe the charges proposed by the landlord are unreasonable, then I suggest you contact the landlord and ask for copies of the bills to make sure you are paying only for a third of the total cost. Also, maybe you will see that the paint contractor charged for some damage but only in a specific room such as a child's bedroom or a home office area. You can then propose a more equitable amount that addresses the legitimate concerns of the landlord.

If you are still unable to resolve the matter, then you can consider small claims court. I am not an attorney, but my 30 years of experience indicates that the courts are always a gamble for both parties. So with only $200 in dispute, you need to factor in the potential amount of money you really are likely to receive if you go to court.

It is my opinion that some courts will likely find that the landlord's formula wasn't unreasonable. They could conclude that the terms of the lease are enforceable, as it is not arbitrary and was agreed upon between you and the landlord when you originally signed the lease at move-in.

If you are thinking you will be compensated for all of your time and out-of-pocket costs, remember that the courts will not even hear any claims for your time in preparing your case, your travel costs or any loss of income from missing work. I suggest you contact your landlord to see if you can't get a reasonable settlement.

• Property manager Robert Griswold is author of "Property Management for Dummies." Email: Rental Q&A @rgriswold.inman@retodayradio.com.

2012, Inman News Service

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