QMy former landlord deducted $210 from my security deposit for what he said was an estimate for carpet cleaning. The carpet was never cleaned and is no longer in the rental property because he replaced it right after I vacated the condo. Can he do this? If so, would I get my money back if I went to small-claims court?

AProperty manager

Griswold replies:

Normally, you should not be charged for work not completed. However, every situation must be evaluated based on all of the facts. To give a thorough answer, several questions come to mind. For example, how old was the carpet? How long did you live there? What was the condition of the carpet when you moved in? The carpet condition when you moved out? Did you damage the carpet or shorten its life expectancy in any way?

The answers to these questions will determine whether the landlord is correct in deducting any amount from your deposit. Naturally, even if a charge is appropriate, the landlord should accurately label the charge. Thus, a charge for "carpet cleaning" is dishonest if the landlord fully intends to replace the carpet. Of course, it could also be a legitimate mistake. For example, perhaps the landlord sent you your security deposit accounting, then the carpet cleaning company tried to clean the carpet and advised the owner that the carpet was too far gone to clean.

A common problem I have seen is when tenants move into a unit with old carpet and then somehow damage the carpet. The issue is whether the tenant should be charged the full amount for replacing the carpet if he or she only lived there a portion of the carpet's life span. I would say no.

However, one possible justification for the landlord charging you $210 is if you were the "last tenant" on this carpet that had some reasonable life left. Then it is reasonable to charge you for a percentage of the cost of replacing the carpet if you caused any damage to it during your tenancy.

Of course, if you only caused "normal wear and tear" damage, then you should not be charged. For example, if you lived in the condo for 10 years and the carpet was new and had a 10-year life expectancy when you moved in, then clearly you should not be charged anything for carpet replacement.

Going to small-claims court is always a gamble. It usually comes down to who is hearing your case. But the real key is usually who has best documented his or her case and can make the persuasive argument. It is also expected that the preponderance of evidence supporting the deductions be placed on landlords because they are business professionals.

I live downtown in a major metropolitan area in a single room occupancy or SRO unit. [An SRO is a small, one room, very economical unit that typically has a common bathroom and kitchen facilities that are shared by several tenants.] The linens are stained and have holes in them. I thought they would be replaced after the recent rent increase. Since the linens weren't replaced, I now wonder if there is some agency I can call or should I just refuse to pay my rent? Thanks for your help!

Tenants' attorney Kellman replies:

The linens are apparently supplied as part of your rental unit. Unless otherwise agreed, the landlord should replace them when they wear out by normal use.

It is questionable whether stains on the linen constitute a worn-out condition requiring replacement. Torn linen, however, would present a worn-out condition requiring replacement.

Check with your local service agencies in the phone book, but I am not aware of any specific public agency in your area that would step in and force the landlord to provide you new linen.

To resolve this and most other landlord-tenant disputes, you would follow much the same course. First, document your position to the landlord in a polite letter. If that does not handle it, you will need to take some action that could include buying your own linen and keeping track of the cost. You could bring a case in the small-claims court for reimbursement after you move out.

It would not be a good idea to withhold the rent in your case. That should only be done under certain conditions and when the rental has significant habitability problems. Before withholding any rent, seek legal advice because not paying the rent could result in an eviction case being filed against you in court.

Landlords' attorney Smith replies:

The landlord's point of view would hold you responsible for replacement of the linens. Steve Kellman is going to have a tough time convincing a court that the stained or worn linens are within the warranty of habitability.

Let's face it, this is a rental room -- not a full-service hotel. Try finding bargain linens at a local thrift or resale store. If you want to continue living there, you must pay the increased rent, or find yourself on the receiving end of an eviction lawsuit.

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.

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