Switching apartments triggers surprise fee

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Jun. 15, 2012

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Rent it Right

Janet Portman
Inman News®

Q: After my lease was up, I asked to move to a different apartment in the building. Management charged me a $200 fee for repainting and new carpeting. But I didn't pay this fee when I initially moved in, and new tenants at this time don't pay it either. Is this legal? --Judith M.

A: Management has charged you a "move-in fee," which is a one-time fee that's intended to reimburse the landlord for costs associated with processing a new tenant. Typically, they include new keys, the value of management's time spent processing the lease and introducing the tenant to the property, and so on.

It's unusual to see such a fee include refurbishing costs, such as new paint and carpet. Normally, if a rental needs these due to abnormal use by the prior tenant, the landlord deducts the cost from the prior tenant's security deposit. If the paint and carpet need to be refreshed due to normal wear and tear, the landlord simply does the work -- this is known as upkeep, and while tenants indirectly pay it through their rent, they are not usually charged separately for normal upkeep.

Let's assume that new paint and carpet are needed only because the old has run its course -- normal wear and tear has resulted in the need to paint and recarpet. Your landlord is trying to avoid paying "the cost of doing business" by charging you separately for the expense. But this may not be legal, depending on the law of the state where you live.

California legislators, for example, got wise to this landlord ploy and amended the security deposit statute to require any upfront payments to be refundable, no matter what they were intended to cover (fees to run a credit check are exempted). The law specifically allows landlords and tenants to agree that the tenant will pay for alterations or improvements, but only if these are at the tenant's request, and only if these improvements are not for repairs or cleaning for which the landlord could have charged the previous tenant. (Calif. Civil Code Section 1950.5.)

You'll need to check your state's security deposit statute to see whether your legislators have taken similar steps. If nonrefundable fees are allowed in your state, you may be out of luck.

Q: Is there any downside to sending notices to my tenants via email, and not bothering with a hard copy sent through the mail? It would make life a lot easier. --Jeff B.

A: It's certainly tempting to do business with a keystroke. Under federal law, you'd be able to introduce the notice into court as evidence -- a court would not automatically deny it simply because it was sent electronically. But that's putting the cart before the horse -- you might need to be able to prove that your tenant received the notice, and that's something else entirely.

How do you counter the argument that the email "got sent to spam" or just never appeared? The only certain way to prove receipt is to use an expensive service, such as rpost.com, that allows you to send tamper-proof attachments and gives you reliable proof of receipt. This type of service won't be economically feasible for landlords who send only a few notices a month.

Relying on text messages is even riskier. Evidence of receipt isn't possible unless you undertake an exhaustive records search of the recipient's service provider, something that would never be reasonable in a typical landlord-tenant dispute concerning notice of, say, a raise in the rent.

It's far better to stick with a traditional mail delivery system. To be extra careful, mail your notice and do it "return receipt requested."

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at janet@inman.com.

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