Q: We have a lease that is very thorough (I thought). I entered the home (invited) to look at a dryer that the tenant could not get plugged in. She had provided her own washer and dryer. I noticed water on the floor in the utility room. She stated “I didn’t notice this.” I called a plumber, an HVAC technician, my insurance company and a construction company. I have ended up with close to $4,000 in repairs and don’t even have a floor in the house yet. After one week of no running water—we were fearful of where the water was coming from—we paid for the tenant to stay in a hotel. We were able to reconnect water, but not yet hot water, and we only have sub- flooring, not yet laminate. I have been told by the insurance company, by the building contractors, and by the HVAC repair person that the only leakage is from her washing machine for a period of at least six weeks. Can I demand her to pay all of my expenses? Can I seize her deposit? Do I have to pay for her to leave the house while water is off since it is her problem? Also, she has been using the toilet when checking on the house while being paid to stay in hotel and now the toilet is stopped up. Can I impose a deadline on getting it re- paired? Toilet clogs are in the lease as her concern. Need some advisement.
A: It is truly amazing how unconscious some people are. Rule Number 9 in my speech “The Rules” is “Pray for Consciousness.” Apparently either this ten- ant has none or simply lied about the fact that she didn’t notice water on the floor of the laundry room. Either way, the tenant is responsible for the damage.
This falls under definition of “abnormal wear and tear.” Normal wear and tear involves things that happen as a result of normal use. While there can be disagreement among reasonable people about the definition of “normal use” is, no reason- able person would consider letting water run out on the floor for six plus weeks as normal.
Normal wear and tear is carpeting that wears out, paint that gets old and needs repainting, electric range burners that go out, and stair railings that work them- selves loose. Normal wear and tear does not include the results of paying no attention whatsoever to one’s surroundings.
Water can cause damage; almost everyone who lives in a civilized society knows that. Water left standing on wood causes the wood to rot. If water is cleaned up, the wood is not damaged. This water was not cleaned up because either the tenant didn’t care or was oblivious.
That means the tenant is responsible for all the damage caused by the leak. But the question remains, what to do? Certainly the security deposit is gone. But a security deposit is just that, a deposit. That means it can be a down payment on what the tenant owes. The tenant owes for all of the damage.
Presumably, though, the security deposit was nowhere near $4,000. That means the tenant gets a bill for the entire amount it will cost to put the floor back to usable condition. The bill will be for the $4,000 because the tenant will have to make whole the security deposit in addition to the remainder that the security deposit did not cover.
More than likely the tenant does not have the money. That means she will have to come up with some way to pay it. One way to take yourself out of it is to see if you can get the insurance company to pay for it and then have the insurance company go after the tenant for the money. It may not happen because typically insurance companies don’t like to subrogate claims. But if the insurance company would to that, it would be much the same as in the case of an automobile accident where the injured, not-responsible party’s insurance company pays for its insured’s costs and then tries to re- cover the money from the responsible party.
That would take the landlord out of the picture as the bad guy and lets the insurance company wear that mask. Of course, insurance companies are used to that so have broad shoulders and don’t care much what the party who’s getting billed thinks. They simply want to recover the money they had to put out.
The most obvious solution for the future is to require every tenant to get renter’s insurance. One insurance man I spoke with said renter’s insurance typically comes with $50,000 of liability coverage, more than enough to pay for the tenant’s negligence in this case. It can be had for as little as $100 a year and landlords can require it of all tenants.
The toilet question is a no-brainer. She is absolutely responsible for getting that unplugged. Clogged toilets are not “normal wear and tear” and, as mentioned, are covered specifically in the lease.
