Property Damage

A common problem in landlord-tenant lawsuits is proving the amount owed by tenants for physical damages to the premises. Tenants have a legal obligation to surrender the premises in the same condition as when originally occupied by the tenants, with the exception of “ordinary wear and tear” [see the Security Deposits page for a discussion of what constitutes “ordinary wear and tear”]. Tenants also have an obligation to leave behind any items of personal property that were included in the lease, such as refrigerators, stoves, window air conditioners, etc. The legal measures of damages for breaches of these obligations are as follows:

• For damages to the premises exceeding ordinary wear and tear, the landlord must be prepared to prove the reasonable cost to repair the damages and the reasonable cost of necessary cleaning.
• A special problem arises with the replacement of major items such as carpets. Some judges require damages for a major replacements to be pro-rated. For example, if a carpet would have a reasonable life of 10 years but had to be replaced after five years, the judge might award only half the cost of replacing the carpet.
• For missing items of personal property included in the lease, the landlord must be prepared to testify as to the fair market value of the item as used property (not the replacement cost) at the time it was taken.

With these principles in mind, landlords who wish to obtain a judgment for premises damage and missing property should follow these guidelines:

STEP 1: Gather “baseline” information about the condition of the premises immediately before the tenants moved in. The purpose of this “baseline” information is to allow you to compare the condition of the premises at the time when the tenants moved in with the condition after they moved out. If you made improvements before the tenants moved in, collect the bills for the improvements.

• If you took photographs before the tenants moved in, locate the photographs and organize them by room. (We highly recommend that such photographs be taken on a routine basis before tenants move in.)
• If you have a “check-in” inspection form that notes the conditions existing when the tenants moved in, bring the form to court. (You might also consider using a “check-out” inspection form from the previous tenants.)
• If possible, have information on the age of things like carpet, vinyl flooring, etc. that existed when the tenants moved in.
• If you purchased or otherwise took over the property during the lease and were not involved in the tenants’ move-in, the person responsible for supervising the move-in (the former landlord or management company agent) will need to be subpoenaed as a witness to verify the baseline condition of the premises.

STEP 2: After you obtain possession of the premises from the current tenants, and before you do anything else, is to take photographs showing the damages (including trash and other articles left behind). Use a high resolution digital camera. Do not use a video camera because the resolution is often insufficient, and the judge will not want to take the time to have a video player set up in the courtroom and watch a video.

• Have prints made of the photographs or make them yourself. If you make digital photograph prints yourself, use a good color printer on the highest print quality setting available and print on high-contrast white paper (photo paper is preferable but not required if you get good results on regular paper).
• After the prints are made, organize the photographs in groups either by room or by type of damage, and write a description of what you’re trying to show on the back of each photograph.
• The person who took the photographs should be available to testify in court on the following points:
  • The date the photographs were taken.
  • No changes were made to the property before the photographs were taken.
  • Each photograph is a “fair and accurate” depiction of the scene or item shown.

STEP 3: Prepare an itemized list of the damages and the cost of correcting each item. As mentioned above, the costs will be the reasonable costs to repair damage, the reasonable cost of necessary cleaning, and the fair market value of missing items of personal property.

• If you do the work yourself, retain and attach receipts for materials to the list, and carefully itemize your time (charging a reasonable hourly rate for comparable work in this area).
• If you have outside contractors do some or all of the work, obtain detailed invoices from them showing both materials and labor and also attach them to your itemized list of damages.
• Do not accept an invoice from an outside contractor that does not break down the work done and materials used in a detailed manner. If the court does not believe you should recover for certain items of damage, you will have difficulty proving the amounts you should recover if you have a non-detailed invoice that states only lump-sum amounts for repairs and materials.
• If you are unable to repair the damages before the trial, you will at least need at least one estimate from a reliable contractor. The estimate should give a detailed breakdown of the materials and labor involved in remedying various specific problems. Do not accept a lump-sum estimate because the judge may decide that certain problems will not be charged to the tenants, and therefore you need a way to identify the costs involved in remedying each specific problem.
  • Important note: The contractor or contractors giving the estimate(s) will need to be subpoenaed to testify at the trial (unless you are absolutely certain they will come to court without a subpoena upon your request). For that purpose, as soon as possible, you need to provide us with the name and work and home addresses and telephone numbers of the contractors so we can prepare the subpoenas and have them served before the trial.

You should provide the foregoing materials to us as soon as possible before the scheduled trial so we can review them and be ready for the trial. We may have questions about the materials, and we may ask you to obtain additional materials.

If you are unable to complete your assessment of damages before the scheduled trial date, we can ask the court to postpone the trial to a later date.

If you have any questions about the foregoing guidelines, please do not hesitate to contact us.