I just brought a 2 unit property with one existing tenant. My concern is if he moves out and I have no prior knowledge of the apartment prior to him moving in a year ago how can I legally keep any of his deposit if he moves to cover wear and tear?
He is a smoker and I know the apartment walls are very dirty because of it and will need painted. Would I have any rights to use his deposit for repainting costs?
You should have received all of the paperwork that the previous owner had on this tenant, including the move in checklist that shows what damages were there before the current tenant moved in. Without that, your tenant can say that the unit looked just like this when he moved in and you have no way to dispute it. I would make sure you get copies of everything, especially the lease and the application that the tenant filled out. That way you have his SS # in case you need to go after him when he moves out.
Troy, If he is an existing tenant, you should have received a copy of his lease and any move-in list of damages along with the transfer of his security deposit. If there wasn't a list of damages, then I would assume everything was in proper working order, no major issues at the time he moved in. However, I do not believe you could keep any part of his deposit for normal wear and tear like painting, anyway, unless he has done something major to damage a recent paint job. I'm not a lawyer, but I don't think smoking would constitute more than normal wear and tear unless his lease specified no smoking.
Sounds like you already closed, so for the next time you should have an estoppel certificate completed by each of the existing tenants; with that, you can establish conditions of the premises at move-in (along with lots of other things) - especially important if the seller does not have such records (hobbyist landlords and mom-n-pop landlords don't always use good paperwork and practices).
Now, what do you do in your present situation? Picture yourself in front of a judge, with tenant saying that the place was like that on move-in, and you being unable to say whether that is true or not. What do you think the judge would say given that?
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