Wow, check out this photo. You just can't make some of this stuff up.
Seriously, the question is about "ordinary wear and tear". Right now if the unit was left in that condition, it is so covered in debris, who could even see wear and tear.
Once items are removed and it's been fully cleaned, who knows? There may actually only be "normal wear and tear"-the trash was protecting the surfaces!
What is ordinary wear and tear?
Typical definition of ordinary wear and tear is "That deterioration which occurs based upon the use of which the rental unit is intended and without negligence, carelessness, accident, or misuse, or abuse of the premises or contents by the tenant or members of his household, or their invitees or guests."
In other words, ordinary wear and tear is the natural and gradual deterioration of the apartment over time, which results from a tenant's normal use of the apartment. For example, it is normal for carpeting or paint to wear out in the normal course of living. Carpets become threadbare and paint peels or cracks. Even the most responsible tenant can't prevent the aging process.
Also, a court won't hold a tenant responsible for damage arising from using the apartment in a normal way. For instance, an Illinois owner held back part of a security deposit to pay for repair of nail holes left behind by a tenant who had hung some pictures. The tenant sued to get back his full security deposit. The Illinois court said the nail holes were the result of ordinary wear and tear. After all, hanging pictures is a normal incident of apartment living; it can reasonably be expected.
What is not ordinary wear and tear?
A landlord can make a tenant pay for damages if the tenant helped the aging process along or didn't use the apartment in a normal way. A carpet worn from people walking on it is something you have to expect. But a tenant who cuts a hole in the carpet, spills paint, or leaves heavy traffic patterns from dirty work boots may be held responsible for the damage.
How can you tell what is and isn't ordinary wear and tear? There are three basic types of damages caused by a tenant that aren't considered ordinary wear and tear. They are:
- Negligence. If a tenant does something carelessly that the tenant should have known would cause damage, or if the tenant failed to do something that the tenant reasonably should have done to prevent damage, that's negligence. In short, did the tenant act prudently to preserve the property?
- Failure to Warn. Another form of negligence is where the tenant fails to take steps that could prevent damage to the apartment. Even the reasonable wear and tear exception shouldn't insulate a tenant from responsibility if the tenant fails to let the management know when something goes wrong in the apartment that might later result in worse damage. For example, if a window pane is cracked because of a faulty foundation, that's not the tenant's fault. But if the tenant doesn't tell the management that the crack is letting in water and the carpet below the window gets water damaged, the management may be able to argue that this extra damage was caused by the tenant's failure to inform the management of the problem.
- Abuse/misuse. If the tenant knowingly or deliberately mistreats the property, or uses is for the wrong purposes, the damage the tenant causes isn't ordinary war and tear - it's abuse or misuse.
For example, did the tenant slide furniture over an unprotected floor, causing gouges? Or did the tenant discolor the bathtub by using it to dye fabrics? Was the tenant an artist who failed to cover the floor as the tenant painted, leaving permanent stains on the carpet? Did the tenant paint the walls of the apartment black? Some examples include leaving an apartment carpet mutilated in an area around a wet bar, damaged by rust and mildew stains from plant containers, and covered with cigarette burns - some clear through the pad.
- Accident. Sometimes damage occurs by mistake. The tenant party guest drops a drink on the new carpet, staining it. The tenant drops a heavy planter and cracks the tile floor. Or the tenant is cleaning the light fixture and it falls and breaks.. Or the tenant accidentally leaves the bathtub faucet on, flooding part of the apartment and staining wood floors and carpeting. Even though the tenant didn't purposely damage your property, the management will be able to withhold the cost of repair from the security deposit.
In evaluating whether apartment damage exceeds ordinary wear and tear, there are some other factors to keep in mind. They include:
- Extent of damage. The exact type of damage may be as important as the extent of the damage when evaluating whether it's ordinary wear and tear or not. For example, two or three nail holes in a wall may be considered ordinary wear and tear. But dozens of nail holes may be considered abuse. A few scratches on a wood floor are unavoidable. But a missing wood plank is negligence or abuse.
- Length of residence. Certain things wear out over time. But over how long? The ordinary wear and tear on an apartment from a tenant who's lived there only a short time should be considerably less than that of a tenant who's lived there for a long time. Say you installed new carpet before renting an apartment. It may be reasonable to expect that if a tenant lives there 10 years before moving out, everyday usage would leave it somewhat damaged. But if a tenant moves out after only three months and the carpet is ripped and stained, that's unreasonable, and the management can probably charge the tenant for the damage.
- Character and construction of building. An older building may be expected to undergo greater and more rapid deterioration than a newer building. For example, wooden windowsills in an older building may dry out, rot, or crack over time through no fault of the tenant. But if the building is new, it unlikely that the windowsills would crack with-out some carelessness on the tenant's part (e.g., standing on the windowsill to put up drapes).
At American West Realty, we understand the law and can make fair, educated determinations that will stand up in a court of law. Head over to www.RentCody.com to learn more about our services or contact us and let us start providing professional property management of your Cody or Powell investment property!
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