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'Normal Wear and Tear' Defies Exact Definition

By Robert Griswold, Steven R. Kellman and Ted Smith
Saturday, November 6, 2004; Page T09

Q You have mentioned the phrase "normal wear and tear" several times in regard to replacing carpet or paint in a rental. Is there a number such as 10 years for carpet or every three years for paint? Does it matter if a family of four plus pets is residing in the rental or just a single grandmother?

ATenants' attorney

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Kellman replies:

The laws that govern the security deposit vary from state to state, but commonly the term "ordinary wear and tear" is used to describe the allowable amount of use of a rental without the tenant being financially responsible for repairs or maintenance.

A certain amount of "normal" use of the rental unit will result in an anticipated and reasonable amount of wear that will result in the need for repair, replacement or other maintenance work. The tenant should not be responsible for these costs because they are considered normal maintenance and the cost of being a landlord.

The time frame for each item, such as carpets or paint, varies depending on certain factors, which include the quality of materials used and the number of tenants (and pets) in a household. There is no exact amount of time, by law, that each item should last before it is worn out and needs maintenance, repair or replacement.

Some landlords may have items wear out unreasonably soon due to exceptionally poor materials used. Other landlords may have items in their rentals last a long time because of high-quality materials they chose.

Now factor in the variance between a full household with heavy wear behavior as opposed to a single person who works two shifts and is hardly home. Each situation may be considered normal, at least for them.

What is normal and ordinary wear and tear in each situation continues to defy exact definition despite our best efforts. Some property owners or management companies make a good effort at resolving this by telling the tenant up front that certain items have anticipated life spans under normal use. As long as those time frames are reasonable, both landlord and tenant may use them to at least try to assess who will be responsible when an item wears out or significant maintenance is required.

A few months ago, my nine-month lease expired. That lease said: "Unless written notice is given by Lessor to Lessee or by Lessee to Lessor at least (30) days prior to the expiration of this Lease, then this Lease shall automatically renew for (1) month periods (month-to-month) until written notice is given by one party to the other not less than 30 days prior to the end of any one month."

About 45 days before my lease expired, the management company sent me a letter saying that my lease was ending and included several options with different lease terms and rents.

The longer the term, the lower the monthly rent. In addition, it said I had to let them know of my acceptance of those terms by the end of that month.

At the time I didn't know what I wanted to do, so I did nothing and I am now on a month-to-month basis. I have decided that I want to take advantage of their offer for a longer-term lease at the lower rental rate, but they say that I'm committed to a month-to-month lease. Can't I make them offer the long-term lease?

If not, I want to move, but they tell me that I can only give my 30-day notice at the end of the month. Is that right?

Property manager Griswold replies:

You cannot force the landlord to offer the same lease terms at this time, so I would say you are stuck with a month-to-month rental agreement because you did not give them a notice or accept or reject their options in writing at least 30 days before the end of your lease.

But that may not be all that bad. In many areas, the rental rates have actually fallen in the past several months and you should be able to negotiate a better deal. There are even landlords offering rent concessions or waiving rental application fees.

If you decide you want to move soon, then you should immediately give a 30-day written notice of termination of your tenancy. There is no requirement that you can give a notice to terminate your tenancy only in a certain time period, so you could give your notice tomorrow and legally have the right to vacate in 30 days.

If you do this, be sure to pay only the prorated rent at the beginning of the next month or they may claim that you invalidated your own notice.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold and San Diego lawyers Steven R. Kellman, director of the Tenant's Legal Center, and Ted Smith, principal in a firm representing landlords. E-mail your questions to Griswold at rgriswold.inman@retodayradio.com. Questions should be brief and cannot be answered individually.

© 2004 Inman News Features

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