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3 Landlord/tenant Moveout/damages Questions

Discuss anything to do with property law - buying, selling property

3 Landlord/tenant Moveout/damages Questions

Postby Solomon » Mon Dec 05, 2016 3:05 am

My tenant has just moved out and turned the property over to me.   I have 3 questions about the tenant's liability pertaining to damages and failure to pay the last month's rent.

#1: Last month's rent.

The tenant's official moveout date was the 21st of the month. Per lease, rent is declared late on the 3rd.  Tenant, inspite of my multiple phone calls, and 1 certified mail notice failed to pay the last month's pro-rated rent(through the 21st).  He avoided my calls and failed to return my messages, and when I finally reached him, he apologized and explained that the rent had slipped his mind, but that he is aware that he was supposed to have paid.

Tenant has now moved out and turned the keys over to me.  If I deduct the last month's rent from the deposit, the balance is not enough to cover damages.  

But Leaving damages out of the picture for the moment, how do I figure out how much rent he owes?  If I calculate late charges, do I do so through the official moveout date of the

21st, and then assume that as of the 21st, I now can officially deduct the rent from the deposit?

Or are these items totally separate, meaning, he is STILL delinquent on the rent, and late charges are still growing?

Also, I read in the Texas property code that failure to pay the last month's rent because the tenant wants the landlord to take it from the deposit comes with a triple the rent penalty.  Is that potentially applicable here?  Or no because the tenant never confessed that these were his intentions.  Rather, he just ignored/avoided me and my notices until essentially the 21st when it was time to move out.

#2: How to figure carpet damages:

(and yes, I did read the other post on this topic :)

The tenant severely stained/soiled the carpet throughout the house

(likely due to having 4 dogs --note that only 2 dogs were allowed per lease/pet agreement, and yes, I did give him a notice of pet violation when observed which he pretty much ignored since we already agreed that he could break the lease and move out).  We just had the carpets professionally cleaned, and the company concluded at the end that most of the stains remain as permanent and uncleanable.

As a landlord, I must now make the decision as to replace all the carpets now, or not, and how much to charge the tenant.

Here are some useful facts:

a) The house was built in 2001(so the carpets are now 6 years old).

b) The carpets have very little signs of physical wear, and are thus no where near the replacement point(from a physical wear perspective)

c) Every room is permanently stained from this tenant to the point that it devalues the house if not replaced.

d) The cost of the professional cleaning was $260(but again, most stains did not come out --and yes, they spot pretreated).

e) THe cost of replacing all carpet through the 2700sf house with a similar(builder's grade) carpet is approximately $4000.

f) The tenant was in the house for approximately 1 year.

My intentions are to keep the house for 1 or 2 more rentals, and then probably sell it. Since renters abuse carpets, I am reluctant to replace the carpet now because I am afraid that it will be bad again upon wanting to sell the house.  So I will probably "try" to rent it the way it is now w/the stained carpet, and then later replace it before selling.  Note that the carpet condition PRIOR to this tenant was good enough to sell the property w/out any replacement.

So, while it doesn't not seem reasonable to expect the tenant to pay $4000 considering the carpet is 6 years old, even if it was in great condition, on the other hand, it does not seem fair to me to charge him nothing on the

grounds that 6 years is already at the "official" life expectancy of carpet.  

Also, what about he cleaning fees?  Can I charge these also

--in addition to whatever carpet damages I charge?  Or no, because it is not legal to charge carpet cleaning fees?

(I think it is since such stains are beyond "normal wear and tear")

As an aside, the tenant, with our consent, is terminating the lease early(at roughly 1 year vs. the actual 2 year lease signed).

Maybe I can declare the carpet, based on age and move in condition to be at say, 50% of it's original value, and thus hold him accountable for $2000, plus the incurred cleaning fee?  (This still seems like a lot to ask of a renter...  Yet, I am stuck with a huge house w/stained carpet.  I can try another cleaning company, but that may well end up just adding another $250-$300 to the already costly picture.  Suggestions?)

#3: HVAC repair issue.

The tenant recently reported an AC malfunction.

The cost of repair exceeded $600.

To try to make a long story short, upon carefully inspecting the property after tenant moveout, it was found that the cause of the HVAC issue was, in my opinion, a clear case of tenant negligence, and thus, he is liable.

The question is, in your opinion, do I have enough evidence to make this claim and charge him, or is it too much of a stretch?

So, here are the facts.  Please provide your opinion...

a) The ultimate cause of the HVAC problem was a damaged thermostat wire inside the wall.  (this took a LOT of professional labor to debug, and caused an internal HVAC circuit board to go bad --thus amounted to in excess of $600)

b) The house has a 2 unit HVAC system(upstairs and downstairs).  The problem relates to the downstairs unit.

c) The tenant replaced the upstairs unit thermostat himself at somepoint over the last year.  (Why he had to do this, and why he did not inform me before hand I do not know).  But he admits to having replaced the thermostat.

d) I DID have a licensed HVAC professional work on past heating issues relating to the upstairs unit during the last 12 months.  But he did not change the thermostat, and tells me that when he was there, he recalls the original thermostat, not the new one that the tenant later changed to.

e) The new thermostat he put in covers a larger area of the wall than the original one did.  Upon my removal of his new thermostat, I found that there was a small hole cut in the wall next to the thermostat(approximately an inch in diameter).

f) The cut in the sheetrock also partially cut the HVAC thermostat wiring to the downstairs unit(not totally, but enough to cause problems by shorting various wires together)

--This, BTW, becomes obvious by a photograph I took.

g) When I told the tenant this, he said the hole was already there, and he did not do it.  He further complained that he spent a lot of effort finding a thermostat physically large enough to cover this pre-existing hole.

(--Again, keeping in mind that this hole is the sole root of the issues, since creation of the hole damaged the wiring)

h) I believe that the hole was NOT there when the tenant moved in, and thus MUST have been caused by the tenant, and here's why:

* Entire house was repainted shortly before tenant moved in(e.g. this tenant was the 1st to reside in the home after painting).

As obvious in the photos I took, the hole was clearly cut AFTER the house was painted, and not before.

* The paint line clearly shows the outline of the original thermostat.  Based on that, if the hole was really there at the time of the old thermostat, there would be a visible hole on top of the thermostat(protruding at least 1" above the thermostat casing) that the tenant

presumable would have noted in the move in condition report.  yet, this was NOT noted there.

SO again, is this proof enough of tenant negligence, and can I thus charge or partially charge the tenant for the $600 of repairs,(not to mention a LOT of my own time analyzing and photo documenting this)?

Or is it all still hearsay, and I should just let it slide?

The only possible argument I can see the tenant making is that my HVAC contractor somehow made the hole.  But this makes no sense since a) he had no reason to touch the upstairs thermostat, and b) he is a licensed professional whom I trust to not do something so negligent/stupid.  And again, the tenant did admit to having changed the thermostat...

Thanks in advance

Lee B.

ANSWER: 1.  Simply prorate the last month's rent by dividing the rent by the # of days he owed. If you wish to include a late charge as well, you can probably prorate that in the same fashion, depending on how your lease is worded. Yes, you can normally deduct past due rent from the deposit. If there is money still owed, whether for damages or unpaid rent, you will have to sue them for the difference(probably in small claims court). As for triple rent....my inclination would be to doubt that you would hope to receive that, but I'm not aware of Texas laws so you should probably check with an attorney in your state.

2.  Carpet cleaning costs are valid deductions against a security deposit. If the stains can't be removed, then you probably have a right to demand a prorated cost of repairs(as you suggested in your email). 50% would probably be too much for 6 year old carpet, but if you have to sue, I would start there and let the judge discount further if he/she thinks it's appropriate. Your probably already know this by now, but note that it probably wasn't a good idea to allow an early lease termination without settling these issues first.

3.  Based on those facts, you could probably make a claim for the HVAC repairs, although proving it may be problematic. But again, if you end up having to sue in court, I would include this item. But if the tenant is willing to settle some of this stuff, which would be your best bet, then that's something you should be prepared to give in on.

Mike F.

---------- FOLLOW-UP ----------

Thank you so much for you rapid response.

Just a few quick followup notes to your response...

On
Solomon
 
Posts: 37
Joined: Thu Mar 06, 2014 8:18 pm

3 Landlord/tenant Moveout/damages Questions

Postby fyfe » Mon Dec 05, 2016 10:14 pm

Yes, you could add the cleaning to whatever amount you come up with for replacement. It's perfectly reasonable that you attempted to clean before considering replacement.

When considering an early termination, all factors need to be considered, including the condition of the premises. Perhaps the unit could have been thoroughly inspected at the time and those repair costs could have been wrapped up in the termination agreement(most of this would have been evident via a site inspection).

On the court case, it doesn't really matter whether you are suing for damages or for unpaid rent. You have the same case either way, since the disposition of the security deposit will be a central issue.  
fyfe
 
Posts: 62
Joined: Fri Apr 01, 2011 6:47 pm

3 Landlord/tenant Moveout/damages Questions

Postby Adalric » Tue Dec 06, 2016 2:05 pm

2: 1 thing I forgot to mention is that the house was vacant for 2 of the 6 years, so maybe the effective depreciation age of the carpet is really 4 years, and not 6.

Either way, I am trying to come up with a "fair" amount(maybe I reduce it to 25% of the cost) that I can ask for now, and hopefully tenant agrees.  Can I also add the carpet cleaning costs of $260 on top of what ever fair amount is decided?

As far as settling before accepting the early termination, how would I have accomplished this 9fro future reference)?

All these issues arose AFTER he moved out when I did a walk through.  Part of the agreement for early termination was that he leave the property in good condition, pay the last month's rent, etc.  So I guess technically, I can hold the tenant in breach of the early termination agreement :)  --except that I already accepted the keys from him(but that was before the walkthrough, which he wanted me to do on my own  ...clever on his part it sounds).

On
Adalric
 
Posts: 39
Joined: Mon Mar 31, 2014 2:40 pm

3 Landlord/tenant Moveout/damages Questions

Postby Bean » Wed Dec 07, 2016 4:51 pm

1: THe whole issue about the failure to pay the last month's rent is that I now don't have enough security deposit to cover damages(because I need to deduct a big chunk to cover the rent).  So my question is really, should I be pursuing getting the rent, or take it from the deposit, and only be pursuing getting additional $ for the damages.  WHich is a stronger case for me as the landlord(in your opinion)

Again thanks so much for your valuable perspective

Lee
Bean
 
Posts: 39
Joined: Sun Mar 02, 2014 3:36 pm

3 Landlord/tenant Moveout/damages Questions

Postby treasach44 » Thu Dec 08, 2016 9:34 am

My tenant has just moved out and turned the property over to me.   I have 3 questions about the tenant's liability pertaining to damages and failure to pay the last month's rent.

#1: Last month's rent.

The tenant's official moveout date was the 21st of the month. Per lease, rent is declared late on the 3rd.  Tenant, inspite of my multiple phone calls, and 1 certified mail notice failed to pay the last month's pro-rated rent(through the 21st).  He avoided my calls and failed to return my messages, and when I finally reached him, he apologized and explained that the rent had slipped his mind, but that he is aware that he was supposed to have paid.

Tenant has now moved out and turned the keys over to me.  If I deduct the last month's rent from the deposit, the balance is not enough to cover damages.  

But Leaving damages out of the picture for the moment, how do I figure out how much rent he owes?  If I calculate late charges, do I do so through the official moveout date of the

21st, and then assume that as of the 21st, I now can officially deduct the rent from the deposit?

Or are these items totally separate, meaning, he is STILL delinquent on the rent, and late charges are still growing?

Also, I read in the Texas property code that failure to pay the last month's rent because the tenant wants the landlord to take it from the deposit comes with a triple the rent penalty.  Is that potentially applicable here?  Or no because the tenant never confessed that these were his intentions.  Rather, he just ignored/avoided me and my notices until essentially the 21st when it was time to move out.

#2: How to figure carpet damages:

(and yes, I did read the other post on this topic :)

The tenant severely stained/soiled the carpet throughout the house

(likely due to having 4 dogs --note that only 2 dogs were allowed per lease/pet agreement, and yes, I did give him a notice of pet violation when observed which he pretty much ignored since we already agreed that he could break the lease and move out).  We just had the carpets professionally cleaned, and the company concluded at the end that most of the stains remain as permanent and uncleanable.

As a landlord, I must now make the decision as to replace all the carpets now, or not, and how much to charge the tenant.

Here are some useful facts:

a) The house was built in 2001(so the carpets are now 6 years old).

b) The carpets have very little signs of physical wear, and are thus no where near the replacement point(from a physical wear perspective)

c) Every room is permanently stained from this tenant to the point that it devalues the house if not replaced.

d) The cost of the professional cleaning was $260(but again, most stains did not come out --and yes, they spot pretreated).

e) THe cost of replacing all carpet through the 2700sf house with a similar(builder's grade) carpet is approximately $4000.

f) The tenant was in the house for approximately 1 year.

My intentions are to keep the house for 1 or 2 more rentals, and then probably sell it. Since renters abuse carpets, I am reluctant to replace the carpet now because I am afraid that it will be bad again upon wanting to sell the house.  So I will probably "try" to rent it the way it is now w/the stained carpet, and then later replace it before selling.  Note that the carpet condition PRIOR to this tenant was good enough to sell the property w/out any replacement.

So, while it doesn't not seem reasonable to expect the tenant to pay $4000 considering the carpet is 6 years old, even if it was in great condition, on the other hand, it does not seem fair to me to charge him nothing on the

grounds that 6 years is already at the "official" life expectancy of carpet.  

Also, what about he cleaning fees?  Can I charge these also

--in addition to whatever carpet damages I charge?  Or no, because it is not legal to charge carpet cleaning fees?

(I think it is since such stains are beyond "normal wear and tear")

As an aside, the tenant, with our consent, is terminating the lease early(at roughly 1 year vs. the actual 2 year lease signed).

Maybe I can declare the carpet, based on age and move in condition to be at say, 50% of it's original value, and thus hold him accountable for $2000, plus the incurred cleaning fee?  (This still seems like a lot to ask of a renter...  Yet, I am stuck with a huge house w/stained carpet.  I can try another cleaning company, but that may well end up just adding another $250-$300 to the already costly picture.  Suggestions?)

#3: HVAC repair issue.

The tenant recently reported an AC malfunction.

The cost of repair exceeded $600.

To try to make a long story short, upon carefully inspecting the property after tenant moveout, it was found that the cause of the HVAC issue was, in my opinion, a clear case of tenant negligence, and thus, he is liable.

The question is, in your opinion, do I have enough evidence to make this claim and charge him, or is it too much of a stretch?

So, here are the facts.  Please provide your opinion...

a) The ultimate cause of the HVAC problem was a damaged thermostat wire inside the wall.  (this took a LOT of professional labor to debug, and caused an internal HVAC circuit board to go bad --thus amounted to in excess of $600)

b) The house has a 2 unit HVAC system(upstairs and downstairs).  The problem relates to the downstairs unit.

c) The tenant replaced the upstairs unit thermostat himself at somepoint over the last year.  (Why he had to do this, and why he did not inform me before hand I do not know).  But he admits to having replaced the thermostat.

d) I DID have a licensed HVAC professional work on past heating issues relating to the upstairs unit during the last 12 months.  But he did not change the thermostat, and tells me that when he was there, he recalls the original thermostat, not the new one that the tenant later changed to.

e) The new thermostat he put in covers a larger area of the wall than the original one did.  Upon my removal of his new thermostat, I found that there was a small hole cut in the wall next to the thermostat(approximately an inch in diameter).

f) The cut in the sheetrock also partially cut the HVAC thermostat wiring to the downstairs unit(not totally, but enough to cause problems by shorting various wires together)

--This, BTW, becomes obvious by a photograph I took.

g) When I told the tenant this, he said the hole was already there, and he did not do it.  He further complained that he spent a lot of effort finding a thermostat physically large enough to cover this pre-existing hole.

(--Again, keeping in mind that this hole is the sole root of the issues, since creation of the hole damaged the wiring)

h) I believe that the hole was NOT there when the tenant moved in, and thus MUST have been caused by the tenant, and here's why:

* Entire house was repainted shortly before tenant moved in(e.g. this tenant was the 1st to reside in the home after painting).

As obvious in the photos I took, the hole was clearly cut AFTER the house was painted, and not before.

* The paint line clearly shows the outline of the original thermostat.  Based on that, if the hole was really there at the time of the old thermostat, there would be a visible hole on top of the thermostat(protruding at least 1" above the thermostat casing) that the tenant

presumable would have noted in the move in condition report.  yet, this was NOT noted there.

SO again, is this proof enough of tenant negligence, and can I thus charge or partially charge the tenant for the $600 of repairs,(not to mention a LOT of my own time analyzing and photo documenting this)?

Or is it all still hearsay, and I should just let it slide?

The only possible argument I can see the tenant making is that my HVAC contractor somehow made the hole.  But this makes no sense since a) he had no reason to touch the upstairs thermostat, and b) he is a licensed professional whom I trust to not do something so negligent/stupid.  And again, the tenant did admit to having changed the thermostat...

Thanks in advance

Lee B.

ANSWER: 1.  Simply prorate the last month's rent by dividing the rent by the # of days he owed. If you wish to include a late charge as well, you can probably prorate that in the same fashion, depending on how your lease is worded. Yes, you can normally deduct past due rent from the deposit. If there is money still owed, whether for damages or unpaid rent, you will have to sue them for the difference(probably in small claims court). As for triple rent....my inclination would be to doubt that you would hope to receive that, but I'm not aware of Texas laws so you should probably check with an attorney in your state.

2.  Carpet cleaning costs are valid deductions against a security deposit. If the stains can't be removed, then you probably have a right to demand a prorated cost of repairs(as you suggested in your email). 50% would probably be too much for 6 year old carpet, but if you have to sue, I would start there and let the judge discount further if he/she thinks it's appropriate. Your probably already know this by now, but note that it probably wasn't a good idea to allow an early lease termination without settling these issues first.

3.  Based on those facts, you could probably make a claim for the HVAC repairs, although proving it may be problematic. But again, if you end up having to sue in court, I would include this item. But if the tenant is willing to settle some of this stuff, which would be your best bet, then that's something you should be prepared to give in on.

Mike F.

---------- FOLLOW-UP ----------

Thank you so much for you rapid response.

Just a few quick followup notes to your response...

On
treasach44
 
Posts: 56
Joined: Mon Jun 17, 2013 1:34 pm


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