Alex Myers

Alex Myers of Myers & Associates will take over the legal advice column "Minding Your Business." He specializes in business law.

The most common legal dispute between residential landlords and tenants is over the withholding of deposit funds.

The purpose of the deposit is to secure the landlord in paying for repairs to the rented premises resulting from damage to the premises caused by the tenant, which is not the result of normal wear and tear.

Two of the most common concerns regarding tenants’ deposits are:

(1) Damage the tenant believes existed prior to their tenancy; and

(2) Damage the tenant believes is the result of ordinary wear and tear.

If the security deposit is retained to pay for pre-existing damages or ordinary wear and tear, that application of the deposit would be improper.

However, without a clear evidentiary record of pre-existing damage, personal memory is a notoriously unreliable source of evidence that is difficult to accurately rely upon.

With respect to ordinary wear and tear, there are common misconceptions about what constitutes ordinary wear and tear.

The best first step in protecting your deposit is to inspect the rented premises, then itemize and disclose all defects to the condition of the premises within three days of moving into the rental unit. Your landlord will usually provide you with a checklist that you can fill out and return.

It is important to complete this checklist in a timely fashion. At the end of your tenancy, if you are charged for a piece of damage that is shown as already damaged on the checklist, you will have good evidence to protect you.

You might not remember when something in your rented premises was damaged during the tenancy, but after reviewing your move-in checklist you may be reminded that there was no damage when you took possession. This document protects both you and your landlord from mistakes.

Ordinary wear and tear is the unavoidable incremental damage that rental properties suffer from regular use.

However, just because damage was accidental does not mean it was a result of ordinary wear and tear.

A common example is with carpets. Just because you accidentally spilled red wine on the carpet does not mean that a large red wine stain is a result of ordinary wear and tear; you may be charged for cleaning or replacement of the carpet.

There may also have been wear and tear present prior to your use of the premises, but this does not mean that you won’t be held liable for further damage. If carpet was not new when you moved in, remember that carpet has an estimated useful life.

If you moved in to a rental with two-year-old used carpet and caused a need for the carpet to be replaced, you may be charged for the pro-rata value of the remaining useful life of the carpet.

Deposits are factually dependent and every incidence is different. Take photos when you move in and photos when you move out, and schedule a pre-move-out inspection with your landlord during the last week of your tenancy.

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Alex Myers is a business attorney with Myers & Associates in Napa. Reach him at alex@myers-associates.com or 707-257-1185. The information provided in this column is not intended as legal advice, nor does it create an attorney-client relationship. The information is not a comprehensive analysis of the law — if you need legal advice, contact an attorney.