By Robert Griswold, Steven R. Kellman and James McKinley
Saturday, June 30, 2007
Q I didn't return a key to the landlord after I moved out. Now he says he will deduct the cost of a new lock and key set from my security deposit. Can he do this?
A Steven Kellman, a lawyer for tenants, replies:
A landlord may deduct money from a tenant's security deposit for back rent owed, cleaning and damage to the rental brought about by use beyond normal wear and tear. The keys belong to the landlord and must be returned at the end of the tenancy. Because you did not return all the keys, your landlord is within his rights to replace the keys for the new tenant at your expense.
Because you have a copy of the key, the landlord should change the locks to protect against liability in case of a future unauthorized entry by a key. That means you will have to pay for rekeying the existing locks.
Some landlords will take this opportunity to upgrade or change the locks at your expense, which means that you are improving the property with your deposit money.
He is not supposed to do that, but he can argue that rekeying an old lock may not be practical, so new ones are needed.
The best way to protect yourself is to return all door keys, mail keys and garage-door openers when vacating. In this way, if the landlord feels it proper to rekey or change the locks for a new tenant, it will be his expense as a routine cost of doing business, not your obligation from the deposit.
I own a commercial retail building and have received a bill from my tenant for the repair of the air conditioner. I was not called before the repair, no bids were taken and the bill is rather high.
The tenant said she had to repair the air conditioner immediately. She did not attempt to call me or advise me of this until two weeks after the air conditioner was repaired. I am not inclined to comply with the request for full reimbursement because of the manner in which this was handled. I would consider splitting the cost. What is your opinion?
James McKinley, a lawyer for landlords, replies:
In the case of a lease for nonresidential property, the written lease agreement between the parties will determine who is responsible for repairing the air conditioner. Both the landlord's and tenant's obligations will be spelled out.
Two common types of commercial leases are the gross lease and the triple-net lease. With a gross lease, the tenant is responsible for paying a flat rent and the landlord is required to pay all expenses, such as taxes, utilities, insurance and maintenance. In the case of a triple-net lease, the tenant is required to pay all those expenses.
Many commercial leases require that the tenant obtain a service contract to maintain the air-conditioning system and pay for any necessary repairs.
You need to carefully read the lease to determine who is responsible for the repairs. Even if the air conditioner is your responsibility, it is likely that the lease requires your tenant to notify you of the problem and give you a reasonable opportunity to make the repairs. If the repair is your responsibility, it would be reasonable to offer to split the cost.
Kellman, the tenants' lawyer, replies:
In commercial tenancies, the lease is very much the controlling force between the parties. The law steps in very little to protect the commercial tenant against unfair situations or potential hardships.
For example, commercial tenants may not withhold rent based on defects in the building such as a plumbing leak. Many commercial landlords and tenants get confused about their rights and obligations in commercial law based on their common-sense interpretations of what seems fair and what goes on with residential rentals.
James is correct when he directs you to read your lease. It should specify who must maintain the heating, ventilation and air-conditioning (HVAC) system. In some commercial leases, the landlord will be responsible for part or all of the HVAC system. Some leases place the burden on the tenants, along with their having to pay maintenance contracts. Many leases will not allow tenants to make any repairs or modifications without the landlord's consent, and many require the tenants to give adequate notice before a repair must be made by the landlord.
Because the work has already been done, you should read the lease to determine who is responsible. If you are responsible, and the bill is more than you could have gotten the repair done for, you could offer to pay what it would have cost had you been properly notified and had your contractor done the work.
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 Tenants Legal Center, and James McKinley, member of the Moffitt & Associates law firm, which represents landlords. E-mail questions to Griswold atrgriswold.inman@retodayradio.com. Questions should be brief and cannot be answered individually.
© 2007 Inman News Features
Distributed by Inman News Features
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