Question Surrounding Security Deposit

29 Replies

I recently purchased a property in Wisconsin and when I received all the paperwork I did not receive a damage checklist or condition document from the tenants. Now one of the tenants is leaving and left cigarette burn holes all over the floor and the walls are absolutely coated in tar/nicotine. Am I able to deduct the carpet replacement and wall cleaning as that is beyond normal wear and tear even though I do not have a checklist or property condition document due to obtaining the property from a seller and inheriting the tenants? Any help on this would be great, thanks.

Depends on the age of the carpet.  Is it past it's usable life, anyway?

For instance, if the carpet has a usable life of 6 years, and the tenant was there for 6 years, you can't charge them anything for replacing it.  You have to prorate the charge according to the life left in it.

As far as the walls, @Sam Erickson I agree with.  If they weren't supposed to smoke, you could charge them for any extra work or paint you need to use to get the walls cleaned and painted.  But, again, charging for painting a unit also normally needs to be prorated.  

The CA Dept of Consumer Affairs has a great website on this issue.  I think it's a good guideline for anyone.  The following is cut and pasted from the state website:

http://www.dca.ca.gov/publications/landlordbook/se...

1. Costs of cleaning

A landlord may properly deduct from the departing tenant's security deposit to make the rental unit as clean as it was when the tenant moved in.241

A landlord cannot routinely charge each tenant for cleaning carpets, drapes, walls, or windows in order to prepare the rental unit for the next tenancy. Instead, the landlord must look at how well the departing tenant cleaned the rental unit, and may charge cleaning costs only if the departing tenant left the rental unit (or a portion of it) less clean than when he or she moved in. Reasonable cleaning costs would include the cost of such things as eliminating flea infestations left by the tenant's animals, cleaning the oven, removing decals from walls, removing mildew in bathrooms, defrosting the refrigerator, or washing the kitchen floor. But the landlord could not charge for cleaning any of these conditions if they existed at the time that the departing tenant moved in. In addition, the landlord could not charge for the cumulative effects of wear and tear. Suppose, for example, that the tenant had washed the kitchen floor but that it remained dingy because of wax built up over the years. The landlord could not charge the tenant for stripping the built-up wax from the kitchen floor.

The The landlord is allowed to deduct from the tenant's security deposit only the reasonable cost of cleaning the rental unit.242

2. Carpets and drapes - "useful life" rule

Normal wear and tear to carpets, drapes and other furnishings cannot be charged against a tenant's security deposit.243 Normal wear and tear includes simple wearing down of carpet and drapes because of normal use or aging, and includes moderate dirt or spotting. In contrast, large rips or indelible stains justify a deduction from the tenant's security deposit for repairing the carpet or drapes, or replacing them if that is reasonably necessary.

One common method of calculating the deduction for replacement prorates the total cost of replacement so that the tenant pays only for the remaining useful life of the item that the tenant has damaged or destroyed. For example, suppose a tenant has damaged beyond repair an eight-year-old carpet that had a life expectancy of ten years, and that a replacement carpet of similar quality would cost $1,000. The landlord could properly charge only $200 for the two years' worth of life (use) that would have remained if the tenant had not damaged the carpet.

3. Repainting walls

One approach for determining the amount that the landlord can deduct from the tenant's security deposit for repainting, when repainting is necessary, is based on the length of the tenant's stay in the rental unit. This approach assumes that interior paint has a two-year life. (Some landlords assume that interior paint has a life of three years or more.)

Length of stay
Less than 6 months
6 months to 1 year
1 year to 2 years
2 or more years

Deduction

full cost
two-thirds of cost
one-third of cost
no deduction
 

Using this approach, if the tenant lived in the rental unit for two years or more, the tenant could not be charged for any repainting costs, no matter how dirty the walls were. 244

4. Other damage to walls

Generally, minor marks or nicks in walls are the landlord's responsibility as normal wear and tear (for example, worn paint caused by a sofa against the wall). Therefore, the tenant should not be charged for such marks or nicks. However, a large number of holes in the walls or ceiling that require filling with plaster, or that otherwise require patching and repainting, could justify withholding the cost of repainting from the tenant's security deposit. In this situation, deducting for painting would be more likely to be proper if the rental unit had been painted recently, and less likely to be proper if the rental unit needed repainting anyway. Generally, large marks or paint gouges are the tenant's responsibility.245

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Thanks for the info, there was a no smoking inside the building clause and as to the useful life of the carpet I don't know that answer as I have owned the property for 5 months now. The carpet was in decent shape minus the all the burn holes which were a lot and large. The problem I have is the tenant is now claiming this was all there before she moved in 6+ years ago and I don't have condition documentation as I have only owned for 5 months and the previous owner would have this.

The above advice is from the peoples republic of California. Please refer to the wisconsin way, landlord tenant handbook for these questions.  I see it the tenants responsibility to fill out a check list or keep a check list old LL gave them. Seems to me, responsible bookwork on the tenants side.  Unless the tenant can prove prior damage, the bill would be 100% theirs!!!!

Originally posted by @Andrew Dicks :

Thanks for the info, there was a no smoking inside the building clause and as to the useful life of the carpet I don't know that answer as I have owned the property for 5 months now. The carpet was in decent shape minus the all the burn holes which were a lot and large. The problem I have is the tenant is now claiming this was all there before she moved in 6+ years ago and I don't have condition documentation as I have only owned for 5 months and the previous owner would have this.

 If she's been in there over 6 years you'd have to replace the carpet anyway.  Even if she only had normal wear and tear.  I wouldn't charge her for it.  I don't think you'd win on that one, if she sued over it.

Originally posted by @Chad Nagel :

The above advice is from the peoples republic of California. Please refer to the wisconsin way, landlord tenant handbook for these questions.  I see it the tenants responsibility to fill out a check list or keep a check list old LL gave them. Seems to me, responsible bookwork on the tenants side.  Unless the tenant can prove prior damage, the bill would be 100% theirs!!!!

 Hey, I love learning.  Would you please quote that law that says in Wisconsin you get to charge tenants for new carpets, even if the carpets are over 6 years old?  Now, that would be really helpful information.

@Andrew Dicks

You could keep the deposit and the tenant could very well assume he has no case as they were his cigarette burns and simply walk away. The tenant could could be very upset with this as the tenant knows the cigarette burns were already there but still walk away as he feels he has no casy. 

On the other hand the tenant could be upset and then sue you for wrongfully withholding the security deposit. If this is the case the cost to defend yourself would likely be close to the amount of the security deposit assuming you even win the case. 

In my opinion winning the case is a long shot. Without any proof that the burns were not there prior to this tenant living there you have a big chance of loosing that case as the burden of proof would be on you. 

Originally posted by @Scott Schultz :

Sue Kelly where does 6 years come into play, is that some loony Left coast law? I'm WI there is no statute regarding carpet age,

 6+ years is how long the tenant has lived in the unit.

Is everyone in WI so angry?  

Originally posted by @Chad Nagel :

http://datcp.wi.gov/uploads/Consumer/pdf/Wisconsin...

page 12.  Same thing I referenced in above post.  I fail to see how cigarette burns in carpeting is normal wear n tear, even over 6 years old.  

In Cali, I can move into your unit with 5 year old carpet, put stains, cig burns etc and you cant bill me for it cause its 6 years old ......hmmmmm

@Sue Kelly

 Never said cigarette burns were normal wear and tear.  I said that if the carpet is over 6 years old at least (the amount of time the tenant has been in the unit), then good luck convincing a judge that the landlord gets to pass the cost of a brand new carpet onto the tenant, without the judge considering the age of the carpet.

And, is everyone in WI so angry?  Maybe you guys need a trip to the beach :-)

@Sue K.

No anger here, Frustration can come from someone in CALI, giving a WI LL advice. Should we discuss next emissions testing between states too.  You are comparing apples to oranges in this situation.  And you cali residents may live in fear of your judicial system in the peoples republic of cali, but I can assure you, I have passed along carpet expenses to tenants.  I know your trying to help, but your giving wrong advice per WI state rules.  

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@Sue K. the life span of carpet is subjective, if a tenant trashed carpet in 6 years they didnt take care of it, I just did a flip that was built in 2003 (13 years ago) with original carpet, we had the carpets cleaned, and they were just fine,  damage is damage, a careless tenant needs to pay for damage to your property.  And yes we have frustration when some one sites statutes from a different state and thinks its the same everywhere, thats how rumors and false ideas get started, like when someone says you cant evict someone in winter, Bull, its legal, and done every day.  thats all im saying, be educated on the topic before you make comments that are untrue. 

It doesn't matter what state you are in. You cannot charge 100% of the cost to replace carpet that is over 6 years old. It is true California is more strict about this but according to the IRS that carpet is fully depreciated. Courts are not sympathetic to landlords who charge full cost for old carpet. Prorating based on age is more reasonable if there is no standard in the state. More importantly the new owner cannot prove age of the carpet or that the burns were not there. The carpet could be 15 years old and the tenant could be telling the truth.

@Joe Splitrock  Just because something is fully depreciated doesnt mean its at the end of its useable life, or that it doesnt have value, based on your statement, if you owned a rental for the full 27.5 years after that a tenant could tear out the walls, break all the windows, and remove all the copper for scrap, and you couldnt charge them back or sue for damages?   

Originally posted by @Chad Nagel :

@Sue Kelly

No anger here, Frustration can come from someone in CALI, giving a WI LL advice. Should we discuss next emissions testing between states too.  You are comparing apples to oranges in this situation.  And you cali residents may live in fear of your judicial system in the peoples republic of cali, but I can assure you, I have passed along carpet expenses to tenants.  I know your trying to help, but your giving wrong advice per WI state rules.  

 I'M NOT YELLING!   LOL.  

So, go tell it to the judge.  I'm sure in WI they don't have any problem charging tenants full price for brand new carpets, no matter how old they are, as long as there is damage.

And you never quoted any WI rules that say a landlord can charge full price for a carpet replacement, regardless of how old it is.

Nope, you can't just give a link to the landlord tenant book.  Go find the code.  Prove my west coast butt wrong.

Originally posted by @Chad Nagel :

How does depreciation deal with damage?  I have a company vehicle for my company. Once it is fully depreciated and you damage my car, I shouldn't sue you because it has been fully depreciated???

@Joe Splitrock

 But, could you sue for the full replacement cost of a brand new truck?  Or would you be given the current value of the truck, which is no longer brand new?

@Sue K.  There is no rule saying you can charge an amount for a specific thing, we dont ask government for permission to do things, they just lay out guidelines for what we cant do, I would trust Mr Nagel know what hes talking about, he has enough experience with these matters to have quite a bit of clout.  im sure there would be a limitation, but to make someone whole it needs to be fair,  and the award may be for more than you may expect, WI is a pretty LL friendly state for the most part,  also keep in mind no one is proving the actual cost, and carpet and pad as well as installation costs have a wide range of prices. 

@Sue K. provided, it says they can not charge for normal wear and tear or cleaning of a carpet due to normal wear and tear, but it does say you can charge for damage to a carpet with no mention that it needs to be pro rated. that can be tried in court by the tenant, but i do agree with you and think a judge will look for the age of the carpet and make his own determination on that one. 

Alright well I appreciate the discussion on this, I'm still not sure on it. Any Wisconsin real estate lawyers out there that want to give some free/probono advice?

your assertion is that sigarette burns damaged the carpet but you cannot prove was caused by the current tenants.  Any court would require some evidence or proof.  Welcome to the land of ll, just move on and document conditions with the new tenants prior to them moving in so that you dont have this situation again in the future.