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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 "fair 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, 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. |
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| 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:
| The first step is to 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. |
| 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.
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| The second step, 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 either a film camera or a fairly 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. |
| If you use a film camera, have prints made. If
you use a digital camera, have prints made 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.
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| Third, 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. |
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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.
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