What is considered reasonable and beyond wear and tear?
Full Question:
Answer:
Reasonable wear and tear is a term often found in leases to limit the tenant's responsibility to repair or repaint the premises upon leaving. In general, the longer the time of tenancy, the more wear and tear can be expected. Litigation dealing with reasonable wear and tear between landlord and tenant occurs most often when there is a deposit for any damages "beyond reasonable wear and tear." Reasonable wear and tear is generally defined as unavoidable deterioration in the dwelling and its fixtures resulting from normal use. For example, carpet wear due to normal traffic is wear and tear, while a cigarette burn is avoidable and constitutes damages.
What amounts to reasonable wear and tear must be judged bearing in mind the purposes for which the premises were leased and the nature of the tenant's business. Wear and tear can be defined to different degrees according to the state of residence. There tends to be a great deal of ambiguity and subjectivity in this area. Normal for one individual can and will be vastly different from another individuals perception of normal.
Massachusetts statutes do not define normal or reasonable wear and tear. Typically, a landlord is responsible for putting a fresh coat of paint on an apartment before reletting the premises. Broom swept generally means free of debris. Often, a lease will specify that an apartment must be cleaned as well as broom swept, or else cleaning charges may be incurred. If the move out procedures are vague, it will be a matter of subjective determination for the court, based on all the facts and circumstances involved.
The following is a MA statute:
G.L.c. 186, § 15B. Entrance of premises prior to termination of lease;
payments; receipts; interest; records; security deposits.
Section 15B.
(1) (a) No lease relating to residential real property
shall contain a provision that a lessor may, except to inspect the
premises, to make repairs thereto or to show the same to a prospective
tenant, purchaser, mortgagee or its agents, enter the premises before the
termination date of such lease. A lessor may, however, enter such
premises:
(i) in accordance with a court order;
(ii) if the premises appear to have been abandoned by the lessee;
or
(iii) to inspect, within the last thirty days of the tenancy or after
either party has given notice to the other of intention to terminate the
tenancy, the premises for the purpose of determining the amount of
damage, if any, to the premises which would be cause for deduction
from any security deposit held by the lessor pursuant to this section.
(b) At or prior to the commencement of any tenancy, no lessor may
require a tenant or prospective tenant to pay any amount in excess of the
following:
(i) rent for the first full month of occupancy; and,
(ii) rent for the last full month of occupancy calculated at the
same rate as the first month; and,
(iii) a security deposit equal to the first month's rent provided that
such security deposit is deposited as required by subsection (3) and
that the tenant is given the statement of condition as required by
subsection (2); and,
(iv) the purchase and installation cost for a key and lock.
(c) No lease or other rental agreement shall impose any interest or
penalty for failure to pay rent until thirty days after such rent shall
have been due.
(d) No lessor or successor in interest shall at any time subsequent to
the commencement of a tenancy demand rent in advance in excess of the
current month's rent or a security deposit in excess of the amount
allowed by this section. The payment in advance for occupancy pursuant to
this section shall be binding upon all successors in interest.
(e) A security deposit shall continue to be the property of the tenant
making such deposit, shall not be commingled with the assets of the
lessor, and shall not be subject to the claims of any creditor of the
lessor or of the lessor's successor in interest, including a foreclosing
mortgagee or trustee in bankruptcy; provided, however, that the tenant
shall be entitled to only such interest as is provided for in subsection
(3) (b).
(2) (a) Any lessor or his agent who receives, at or prior to the
commencement of a tenancy, rent in advance for the last month of the
tenancy from a tenant or prospective tenant shall give to such tenant
or prospective tenant at the time of such advance payment a receipt
indicating the amount of such rent, the date on which it was received,
its intended application as rent for the last month of the tenancy, the
name of the person receiving it and, in the case of an agent, the name
of the lessor for whom the rent is received, and a description of the
rented or leased premises, and a statement indicating that the tenant
is entitled to interest on said rent payment at the rate of five per cent
per year or other such lesser amount of interest as has been received
from the bank where the deposit has been held payable in accordance
with the provisions of this clause, and a statement indicating that the
tenant should provide the lessor with a forwarding address at the
termination of the tenancy indicating where such interest may be
given or sent.
Any lessor or his agent who receives said rent in advance for the last
month of tenancy shall, beginning with the first day of tenancy, pay
interest at the rate of five per cent per year or other such lesser
amount of interest as has been received from the bank where the deposit
has been held. Such interest shall be paid over to the tenant each year
as provided in this clause; provided, however, that in the event that the
tenancy is terminated before the anniversary date of such tenancy, the
tenant shall receive all accrued interest within thirty days of such
termination. Interest shall not accrue for the last month for which rent
was paid in advance. At the end of each year of tenancy, such lessor
shall give or send to the tenant from whom rent in advance was collected
a statement which shall indicate the amount payable by such lessor to the
tenant. The lessor shall at the same time give or send to such tenant the
interest which is due or shall notify the tenant that he may deduct the
interest from the next rental payment of such tenant. If, after thirty
days from the end of each year of the tenancy, the tenant has not
received said interest due or said notice to deduct the interest from the
next rental payment, the tenant may deduct from his next rent payment the
interest due.
If the lessor fails to pay any interest to which the tenant is then
entitled within thirty days after the termination of the tenancy, the
tenant upon proof of the same in an action against the lessor shall be
awarded damages in an amount equal to three times the amount of interest
to which the tenant is entitled, together with court costs and reasonable
attorneys fees.
(b) Any lessor or his agent who receives a security deposit from a
tenant or prospective tenant shall give said tenant or prospective tenant
at the time of receiving such security deposit a receipt indicating the
amount of such security deposit, the name of the person receiving it
and, in the case of an agent, the name of the lessor for whom such
security deposit is received, the date on which it is received, and a
description of the premises leased or rented. Said receipt shall be
signed by the person receiving the security deposit.
(c) Any lessor of residential real property, or his agent, who accepts
a security deposit from a tenant or prospective tenant shall, upon
receipt of such security deposit, or within ten days after commencement
of the tenancy, whichever is later, furnish to such tenant or prospective
tenant a separate written statement of the present condition of the
premises to be leased or rented. Such written statement shall also contain
a comprehensive listing of any damage then existing in the premises,
including, but not limited to, any violations of the state sanitary or
state building codes certified by a local board of health or building
official or adjudicated by a court and then existing in the premises.
Such statement shall be signed by the lessor or his agent and contain the
following notice in twelve-point boldface type at the top of the first
page thereof:
"This is a statement of the condition of the premises you have
leased or rented. You should read it carefully in order to see if it is
correct. If it is correct you must sign it. This will show that you
agree that the list is correct and complete. If it is not correct, you
must attach a separate signed list of any damage which you believe
exists in the premises. This statement must be returned to the lessor
or his agent within fifteen days after you receive this list or within
fifteen days after you move in, whichever is later. If you do not
return this list, within the specified time period, a court may later
view your failure to return the list as your agreement that the list is
complete and correct in any suit which you may bring to recover the
security deposit."
If the tenant submits to the lessor or his agent a separate list of
damages, the lessor or his agent shall, within fifteen days of receiving
said separate list, return a copy of said list to the tenant with either
such lessor's signed agreement with the content thereof or a clear
statement of disagreement attached.
(d) Every lessor who accepts a security deposit shall maintain a
record of all such security deposits received which contains the
following information: —
(i) a detailed description of any damage done to each of the dwelling
units or premises for which a security deposit has been accepted,
returned to any tenant thereof or for which the lessor has brought suit
against any tenant;
(ii) the date upon which the occupancy of the tenant or tenants
charged with such damage was terminated; and
(iii) whether repairs were performed to remedy such damage, the
dates of said repairs, the cost thereof, and receipts therefor.
Said record shall also include copies of any receipt or statement of
condition given to a tenant or prospective tenant as required by this
section.
Said record shall be available for inspection upon request of a tenant
or prospective tenant during normal business hours in the office of the
lessor or his agent. Upon a wrongful failure by the lessor or his agent
to make such record available for inspection by a tenant or prospective
tenant, said tenant or prospective tenant shall be entitled to the
immediate return of any amount paid in the form of a security deposit
together with any interest which has accrued thereon.
The lessor or his agent shall maintain said record for each dwelling
unit or premises for which a security deposit was accepted for a
period of two years from the date of termination of the tenancy or
occupancy upon which the security deposit was conditioned.
(3) (a) Any security deposit received by such lessor shall be held in a
separate, interest-bearing account in a bank, located within the
commonwealth under such terms as will place such deposit beyond the claim
of creditors of the lessor, including a foreclosing mortgagee or trustee
in bankruptcy, and as will provide for its transfer to a subsequent owner
of said property. A receipt shall be given to the tenant within thirty
days after such deposit is received by the lessor which receipt shall
indicate the name and location of the bank in which the security deposit
has been deposited and the amount and account number of said deposit.
Failure to comply with this paragraph shall entitle the tenant to
immediate return of the security deposit.
(b) A lessor of residential real property who holds a security deposit
pursuant to this section for a period of one year or longer from the
commencement of the term of the tenancy shall, beginning with the first
day of the tenancy, pay interest at the rate of five per cent per year,
or other such lesser amount of interest as has been received from the
bank where the deposit has been held payable to the tenant at the end of
each year of the tenancy. Such interest shall be paid over to the tenant
each year as provided in this clause, provided, however, that in the
event that the tenancy is terminated before the anniversary date of the
tenancy, the tenant shall receive all accrued interest within thirty days
of such termination. Such interest shall be beyond the claims of such
lessor, except as provided for in this section. At the end of each year
of a tenancy, such lessor shall give or send to the tenant from whom a
security deposit has been received a statement which shall indicate the
name and address of the bank in which the security deposit has been
placed, the amount of the deposit, the account number, and the amount of
interest payable by such lessor to the tenant. The lessor shall at the
same time give or send to each such tenant the interest which is due or
shall include with the statement required by this clause a notification
that the tenant may deduct the interest from the tenant's next rental
payment. If, after thirty days from the end of each year of the tenancy,
the tenant has not received such notice or payment, the tenant may deduct
from his next rent payment the interest due.
(4) The lessor shall, within thirty days after the termination of
occupancy under a tenancy-at-will or the end of the tenancy as specified
in a valid written lease agreement, return to the tenant the security
deposit or any balance thereof; provided, however, that the lessor may
deduct from such security deposit for the following:
(i) any unpaid rent or water charges which have not been validly
withheld or deducted pursuant to any general or special law.
(ii) any unpaid increase in real estate taxes which the tenant is
obligated to pay pursuant to a tax escalation clause which conforms
to the requirements of section fifteen C; and
(iii) a reasonable amount necessary to repair any damage caused to the
dwelling unit by the tenant or any person under the tenant's control or
on the premises with the tenant's consent, reasonable wear and tear
excluded. In the case of such damage, the lessor shall provide to the
tenant within such thirty days an itemized list of damages, sworn to by
the lessor or his agent under pains and penalties of perjury, itemizing
in precise detail the nature of the damage and of the repairs necessary
to correct such damage, and written evidence, such as estimates, bills,
invoices or receipts, indicating the actual or estimated cost thereof. No
amount shall be deducted from the security deposit for any damage to the
dwelling unit which was listed in the separate written statement of the
present condition of the premises which was required to be given to the
tenant prior to the execution of the lease or creation of the tenancy
pursuant to clause (e) of subsection (2) or any damages listed in any
separate list submitted by the tenant and signed by the lessor or his
agent pursuant to said clause (c), unless the lessor subsequently
repaired or caused to be repaired said damage and can prove that the
renewed damage was unrelated to the prior damage and was caused by the
tenant or by any person under the tenant's control or on the premises
with the tenant's consent. Nothing in this section shall limit the right
of a landlord to recover from a tenant, who wilfully or maliciously
destroys or damages the real or personal property of said landlord, to
the forfeiture of a security deposit, when the cost of repairing or
replacing such property exceeds the amount of such security deposit.
No deduction may be made from the security deposit for any purpose
other than those set forth in this section.
(5) Whenever a lessor who receives a security deposit transfers his
interest in the dwelling unit for which the security deposit is held,
whether by sale, assignment, death, appointment of a receiver or trustee
in bankruptcy, or otherwise, the lessor shall transfer such security
deposit together with any interest which has accrued thereon for the
benefit of the tenant who made such security deposit to his successor in
interest, and said successor in interest shall be liable for the
retention and return of said security deposit in accordance with the
provisions of this section from the date upon which said transfer is
made; provided however, that the granting of a mortgage on such premises
shall not be a transfer of interest. The successor in interest shall,
within forty-five days from the date of said transfer, notify the tenant
who made such security deposit that such security deposit was transferred
to him and that he is holding said security deposit. Such notice shall
also contain the lessor's name, business address, and business telephone
number, and the name, business address, and business telephone number of
his agent, if any. Said notice shall be in writing.
Upon such transfer, the lessor or his agent shall continue to be
liable with respect to the provisions of this section until:
(a) there has been a transfer of the amount of the security deposit
so held to the lessor's successor in interest and the tenant has been
notified in writing of the transfer and of the successor in interest's
name, business address, and business telephone number;
(b) there has been compliance with this clause by the successor in
interest; or
(c) the security deposit has been returned to the tenant.
In the event that the lessor fails to transfer said security deposit to
his successor in interest as required by this subsection the successor in
interest shall, without regard to the nature of the transfer, assume
liability for payment of the security deposit to the tenant in accordance
with the provisions of this section; provided, however, that if the
tenant still occupies the dwelling unit for which the security deposit
was given, said successor in interest may satisfy such obligation by
granting the tenant free use and occupancy of the dwelling unit for a
period of time equivalent to that period of time for which the dwelling
unit could be leased or occupied if the security deposit were deemed to
be rent. The liability imposed by this paragraph shall not apply to a
city or town which acquires title to property pursuant to chapter sixty
or to a foreclosing mortgagee or a mortgagee in possession which is a
financial institution chartered by the commonwealth or the United
States. The term "rent", as used in the preceding sentence, shall mean
the periodic sum paid by the tenant for the use and occupation of the
dwelling unit in accordance with the terms of his lease or other rental
agreement.
(6) The lessor shall forfeit his right to retain any portion of the
security deposit for any reason, or, in any action by a tenant to
recover a security deposit, to counterclaim for any damage to the
premises if he:
(a) fails to deposit such funds in an account as required by subsection
(3);
(b) fails to furnish to the tenant within thirty days after the
termination of the occupancy the itemized list of damages, if any, in
compliance with the provisions of this section;
(c) uses in any lease signed by the tenant any provision which
conflicts with any provision of this section and attempts to enforce
such provision or attempts to obtain from the tenant or prospective
tenant a waiver of any provision of this section;
(d) fails to transfer such security deposit to his successor in
interest or to otherwise comply with the provisions of subsection (5)
after he has succeeded to an interest in residential real property; or,
(e) fails to return to the tenant the security deposit or balance
thereof to which the tenant is entitled after deducting therefrom any
sums in accordance with the provisions of this section, together with
any interest thereon, within thirty days after termination of the
tenancy.
(7) If the lessor or his agent fails to comply with clauses (a), (d), or
(e) of subsection 6, the tenant shall be awarded damages in an amount
equal to three times the amount of such security deposit or balance
thereof to which the tenant is entitled plus interest at the rate of five
per cent from the date when such payment became due, together with
court costs and reasonable attorney's fees.
(7A) Whenever a lessor who receives rent in advance for the last month
of tenancy transfers his interest in the dwelling unit for which the
rental advance was received, whether by sale, assignment, death,
appointment of a receiver or trustee in bankruptcy, or otherwise, the
lessor shall credit an amount equal to such rental advance together with
any interest which has accrued thereon for the benefit of the tenant who
made such rental advance, to the successor in interest of such lessor,
and said successor in interest shall be liable for crediting the tenant
with such rental advance, and for paying all interest accrued thereon in
accordance with the provisions of this section from the date upon which
said transfer is made; provided, however, that the granting of a mortgage
on such premises shall not be deemed a transfer of interest. The
successor in interest shall, within forty-five days from the date of said
transfer, notify the tenant who made such rental advance that such rental
advance was so credited, and that such successor has assumed
responsibility therefor pursuant to the foregoing provision. Such notice
shall also contain the lessor's name, business address, and business
telephone number, and the name, business address, and business telephone
number of his agent, if any. Said notice shall be in writing.
Upon such transfer, the lessor or his agent shall continue to be
liable with respect to the provisions of this section until:- (a) there
has been a credit of the amount of the rental advance so held to the
lessor's successor in interest and the tenant has been notified in
writing of the transfer and of the successor in interest's name,
business address, and business telephone number; (b) there has been
compliance with this clause by the successor in interest; or (e) the
rental advance has been credited to the tenant and all accrued interest
has been paid thereon.
In the event that the lessor fails to credit said rental advance to his
successor in interest as required by this subsection, the successor in
interest shall, without regard to the nature of the transfer, assume
liability for crediting of the rental advance, and payment of all
interest thereon to the tenant in accordance with the provisions of this
section; provided, however, that if the tenant still occupies the
dwelling unit for which the rental advance was given, said successor in
interest may satisfy such obligation by granting the tenant free use and
occupancy of the dwelling unit for a period of time equivalent to the
period of time covered by the rental advance. The liability imposed by
this subsection shall not apply to a city or town which acquires title to
property pursuant to chapter sixty or to a foreclosing mortgagee or a
mortgagee in possession which is a financial institution chartered by the
commonwealth or by the United States.
(8) Any provision of a lease which conflicts with any provision of
this section and any waiver by a tenant or prospective tenant of any
provision of this section shall be deemed to be against public policy
and therefore void and unenforceable.
(9) The provisions of this section shall not apply to any lease,
rental, occupancy or tenancy of one hundred days or less in duration
which lease or rental is for a vacation or recreational purpose.