Q–I own a six-flat in the suburbs and one tenant is leaving at the end of her lease. I know there has been some damage to the apartment and, because we have had some controversies during her tenancy, I believe she is going to do further damage there for revenge.
I know she’s going to say that she didn’t damage the apartment, but I know she did and I want to hold her responsible. What steps can I take and what procedures do I have to follow to recover for the damages I know to exist?
A–Probably the most important step is the one you should have taken before she moved in, so it’s obviously too late for that. When you rent an apartment to a tenant, you should conduct an inspection with him or her and make a list of needed repairs. Such a pre-occupancy inspection would put you in a stronger position if the tenant were to claim that damages existed in the unit prior to occupancy.
You might also be able to counteract such a claim if someone besides the tenant viewed the apartment immediately before the tenant accepted occupancy. For example, if painters or other workmen were used to refurbish the unit prior to rental, they might be able to verify your contentions and testify in court, if necessary, concerning the condition of the apartment at the time of rental.
If you don’t have such testimony to bolster your case, then to a great extent a judge will have to determine the condition of the apartment when the tenant began occupancy.
Once the tenant moves out, your first step should be to take pictures of the apartment. Don’t move or change anything before taking the photographs. Leave the apartment in exactly the same condition it was in when the tenant left. Take enough photos so that every detail of every room is visible. A few pictures will not be enough to give a judge an overall view of the conditions within the apartment.
It’s important to take the pictures immediately after the tenant vacates the apartment because if you wait too long, the tenant could claim that the damage was incurred between the time when she left and when you shot the pictures. If possible, use a camera that puts the date on the photo. If your camera doesn’t have that facility, be sure to note the date when you take the pictures so you can mark it down on the back of the photos.
After taking the pictures, you can begin cleaning up and repairing the apartment. Under the law, if you intend to withhold some or all of the security deposit, you must, within 30 days after the tenant vacates the apartment, give the tenant copies of the paid repair bills, or estimates of the repair costs. If you provide estimates, then the actual paid repair bills must be furnished to the tenant within 30 days after you have sent the estimates. Note, however, that you must return the balance of the security deposit to the tenant no later than 45 days after the tenant moves out.
You also may charge the tenant for reasonable costs if you perform some of the repair work yourself. If you choose to do this, your labor charges must be reasonable and you should maintain copious records documenting the amount of time you spend and the work you perform. Obviously, if you charge more than an outside laborer would charge for the same work, a judge might reduce the charge or disallow it altogether.
It is important that you follow all these procedures carefully. If you don’t and then the tenant makes a claim for return of the security deposit, you can be held liable for damages in the amount of twice the security deposit, plus the deposit itself, plus court costs and the tenant’s attorney’s fees.
Q–I had a party a few weeks ago, and a few of my guests went into the hallway because there wasn’t enough room for everyone in the apartment. Later, the landlord showed me what he said were stains in the hallway carpeting, which he claims were made by my guests. He wants me to clean the carpeting or, he says, he will deduct the cost from my security deposit. Can he do that?
A–If he can show that the damage was caused by your guests, he may well be able to charge you for the costs to restore the carpet.
While the hallway is generally a common area, if your guests caused damage beyond ordinary wear and tear, then you probably would be held responsible for the damage.
You are responsible not only for your conduct, but also for the conduct of the individuals you allow to come onto the property and into your apartment.
Q–I failed to pay the rent and the landlord served me with a five-day notice terminating my tenancy and requiring me to move out of the apartment. I moved out within the five days, because I knew I owed the rent and had planned on moving anyway. Now the landlord is suing me for rent for the balance of time left on my lease.
He terminated my tenancy, so how can be sue me now for rent for any time after the termination?
A–If you had a written lease, the landlord probably has the right to sue you for the rent for the balance of the lease term, until the apartment is re-rented.
Most written leases provide that the landlord’s ability to terminate the tenancy for a default on the part of the tenant does not relieve that tenant from the obligation to pay rent for the balance of the term. The theory is that you have a contractual obligation to pay rent that survives the termination and ensures the landlord the rent that he expected to receive under the lease.
The important questions are: Has the landlord re-rented the apartment? And what steps has he taken to find a replacement tenant?
The landlord is obligated to attempt to re-rent the apartment for a reasonable rent. If he fails to make good-faith efforts to re-rent it, he is not entitled to charge you for the rent, because his loss of rent may be due, in part, to his failure to mitigate his damages.
If the landlord has obtained a replacement tenant, then he cannot collect rent twice for the same period of time. You would be responsible for rent only for the time until he obtained the replacement tenant. If, however, the replacement tenant is paying less rent than you would have paid under the lease, the landlord can collect from you the difference between what the replacement tenant is paying and what he would have collected from you for the balance of the term of your lease.
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Robert A. Boron, a Chicago attorney who specializes in leasing matters, writes about landlord and tenant issues for the Tribune. Questions to him can be addressed to Rental Q&A, Your Place section, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611. Sorry, but he cannot make personal replies.
