Carpet Cleaning and Move-Out Damage: How Do You Determine What is Reasonable Wear and Tear?
One of the more frequently-asked questions we get is whether or not carpet/floor cleaning or certain modifications the premises can be considered reasonable wear and tear and thus charged back to the tenant. The Residential Landlord Tenant Act (“RLTA”) is very strict on what charges can be deducted from a tenant’s security deposit upon move-out, but it doesn’t really state what constitutes “ordinary wear and tear”. Before we can get determine what can be withheld, there are a few prerequisites that every landlord should know about before withholding any portion of the deposit.
Written Move-In Checklist
Prior to move-in and executing the lease, it is a good idea to have the landlord or the landlord’s agent walk the premises with the tenant to verify the condition of the premises. At the time of the walkthrough, the landlord and tenant document every detail ranging from the cleanliness of the unit to any small imperfections to the functionality of appliances and fixtures. If the landlord intends to collect any security deposit, RCW 59.18.260 requires a written checklist which “shall include the terms and conditions under which the deposit or portion thereof may be withheld by the landlord upon termination of the lease or rental agreement.” This can be for items such as outstanding utility bills, failure to pay the remainder of the lease term, extraordinary damages to the premises, and the subject of this post, extraordinary wear and tear. The tenant is entitled to one copy of the signed move-in checklist upon move in, and has the right to request one free replacement copy of the written checklist during the tenancy.
Often times the majority of disputes arise because of either the failure to prepare the written checklist, or the failure to prepare an adequate written checklist. A good point of practice as the landlord would be to consider, during the preparation of the unit, what areas or items had to be replaced/refurbished/repaired in order to prepare it for the upcoming tenancy, and then to make a note to include it on the move-in checklist. The checklist should be organized by room, then by appliance/function/feature, then have checkboxes which indicate the condition as “clean”, “needs repair”, “not applicable”, or “other”. There should also be an additional section where the landlord/tenant can be able to place notes or a narrative during the walk-through.
A picture tells a thousand words, but a picture must adequately represent what it is intended to prove. A closeup of one perfect section on the countertop is not going to be representative of the rest of the countertop which has cracks and burn marks. When taking photos, be sure to take photos of the entire subject area, and then take supplemental photos of specific areas of concerns. For example, for the bathroom area, be sure to take a picture of the entire area of the sink, and then take a close-up picture of the handles if there appears to be a crack or an end cap missing. The combination of these photos paints a better view of the condition of the unit upon move-in, and helps to establish any future claims to the security deposit.
What is “Reasonable” Wear and Tear?
The term “reasonable” has been a staple of legal discourse for hundreds of years but at the same time it is somewhat of a legal fiction. It is used to describe the viewpoint of an objective person of ordinary intelligence in similar circumstances with all of the same available information to them. Black’s Law dictionary defines reasonable as “fair, proper, or moderate under the circumstances; sensible. The definition is no different in the real estate context – reasonable wear and tear is often thought to be the wear and tear expected on a unit by a person of ordinary intelligence in similar circumstances from normal use of the premises in a residential manner.
Reasonable wear and tear is a fact-based inquiry that is historically based in part on the common law doctrine of waste and is really dependent on three things: (1) what was the condition of the unit at the time of move-in, (2) what was the condition of the unit at the time of move-out, and (3) would a reasonable person of ordinary intelligence in similar circumstances expect that the landlord would incur significant costs trying to repair or return the unit to its original condition? While these questions are by no means the definite legal standard and neither the legislature nor courts have given a definitive test on what constitutes “reasonable wear and tear”, these are some ideal questions to ask yourself when conducting the move-out inspection.
There are some statutory prohibitions on what cannot be charged upon move-out. RCW 59.18.280(c) states that no portion of the deposit may be withheld for the following items:
(i) For wear resulting from ordinary use of the premises;
(ii) For carpet cleaning unless the landlord documents wear to the carpet that is beyond wear resulting from ordinary use of the premises;
(iii) For the costs of repair and replacement of fixtures, equipment, appliances, and furnishings if their condition was not reasonably documented in the written checklist required under RCW 59.18.260; or
(iv) In excess of the cost of repair or replacement of the damaged portion in situations in which the premises, including fixtures, equipment, appliances, and furnishings, are damaged in excess of wear resulting from ordinary use of the premises but the damage does not encompass the item’s entirety.
As you can see, the RLTA places a heavy emphasis on the written checklist. Therefore, a good rule of thumb and practice is to document, document, document!
Written Basis for Retention of Deposit
RCW 59.18.280 provides that in order for the landlord to retain any portion of the deposit, within 30 days after the termination of the rental agreement or the vacation/abandonment of the premises, the landlord shall give a full and specific statement of the basis for retaining any of the deposit plus any copies of estimates or invoices paid to substantiate the damages, along with the remainder of the refund, to the tenant. This is to be given to the tenant’s last known address via first-class mail postage-prepaid.
Typically, a full and specific retention statement will include the monies received and the beginning of the tenancy, the charges incurred at the end of the tenancy to return/rehabilitate the unit back to the condition it was given in at the beginning of the tenancy, and the balance owed back to the tenant or due to the landlord. There is no specific format on how this should be structured, but it should be formatted in a logical way that makes it easy for the tenant to understand why the landlord either refunded or retained the security deposit in the manner that they did.
Practical Examples
Say for example that a landlord enters into a lease term with a tenant for 12 months and provides a written move-in checklist documenting the condition of the premises and the lease goes through with no problems. Landlord charges only for unpaid utilities left at the end of the lease term per the terms of the lease agreement, but post-marks the retention statement 31-days after the tenancy has been terminated. Under RCW 59.18.280, this is not proper and the tenant will be due back the entirety of their deposit regardless of the 1-day delay. Sometimes post offices close or the weather is inclement to where you aren’t able to mail back the retention statement in time – don’t let that happen to you, so make sure to either mail it a few days early.
What about carpets? Say in the previous example the tenancy is completed with no problems, but the landlord sees carpet stains which is what they would consider beyond reasonable wear and tear. The landlord will need to use their best judgment to analyze the facts regarding the stain – how big is the stain? How much is the discoloration? Are there multiple stains throughout the carpet? Was the carpet planning to be replaced anyway? Do the stains affect the carpet padding and potentially the subfloor? Are the stains chemically hazardous to life? Are the stains brought on by drug activity? Are the stains caused by pets and an indication that the tenant clearly did not take care of the carpet despite the terms of the lease? Asking these questions helps to clarify whether or not it would be reasonable expected of the landlord to incur significant costs in remediating the carpet to return it to its original condition.
For simple single stains that measure 1 inch by 1 inch in an inconspicuous place in a low-traffic area, the landlord might decide not to charge the tenant for risk of coming into conflict with the statute. However, if there are multiple stains throughout the carpet, discoloration, frayed fabric, holes, or even exposed carpet bar, it might be reasonable to assume that severe remediation is needed and the costs should be passed to the tenant. NOTE: if the landlord had already planned to replace the carpet in the unit prior to the tenant executing the lease, they cannot “finance” the carpet replacement by using the reasonable wear and tear by the tenant as an excuse.
Bare floor presents another problem. The courts have not interpreted carpet cleaning to extend to bare floors, so most often landlords charge tenants in carpet-less units for carpet cleaning when this is not allowed under the plain meaning of the statute. Instead, the lease agreement should provide for a reasonable cleaning fee unless the tenant has already paid a nonrefundable cleaning fee upon move-in per RCW 59.18.130(10). Modern residential flooring is wear and tear resistant – overcoming pressure, heat, contraction, stains, spills, and the effects of everyday life. Usually if extraordinary damage occurs to these types of floors, it’s immediately noticeable (such as chemical burns, burn marks, cracks, scratches, chipping, etc.) Again, it really comes down to how well the initial condition of the unit was documented upon move-in, and what photos were taken upon move-out to support the costs incurred.
Holes in the walls are another hot topic. It is reasonable to assume that the tenant is going to ask to hang up reasonable-sized pictures and photographs in their unit, unless the lease explicitly prohibits this from occurring. What is not reasonable are load-bearing fixtures such as TV Mounts, Wall Cabinets, Hanging Book Shelfs, etc. which require significant intrusion into the drywall and studs. In addition to the size of the hole, the shape and the frequency of the holes are also a factor into the reasonableness of the wear and tear. A drilled hole or a thumbtack-shaped hole will tend to be considered reasonable more than a fist-sized or fractured hole. Similarly, a single hole every square foot or so is definitely more reasonable than 20 holes per square foot.
Conclusion
Reasonable wear and tear is not a clear-cut standard, but it is a fact-based inquiry that depends on the condition of the unit at move-in, the condition of the unit at move-out, and whether or not a reasonable person would see that a landlord would have a significant burden imposed on them by having to remediate the damage caused by the changes to the premises. The examples given up above are not definite indicators of what has been found as reasonable wear and tear, but they should help give you a framework to start thinking about how to make better decisions documenting the condition of the premises to maximize your chances of providing a clear retention statement for the security deposit.
Resources:
Reasonable Definition, Black’s Law Dictionary (10th ed. 2014)
