Landlord and Tenant Disputes: Normal Wear and Tear

One of the most dreaded parts of renting a place to live is moving. Tenants generally bank on the fact that they will not see their security deposit again. This does not necessarily have to be the case, and tenants as well as landlords should stay informed about their rights to know how much of their deposit they are entitled to receive back from the tenant’s perspective, and how much can be held back from the landlord’s perspective. For one thing, damages for “normal wear and tear” cannot be deducted from a tenant’s deposit. Naturally, this raises the question of what exactly normal wear and tear actually is.  A landlord may legally only use a tenant’s security deposit for unpaid rent, cleaning the rented premises, repairing damages other than normal wear and tear, and replacing or restoring furniture, furnishings, or other items of personal property.

Naturally, this raises the question of what exactly normal wear and tear actually is.  The can be law vague in addressing head-on what constitutes “normal wear and tear,” but a fair and good faith approach can establish what is and what is not normal wear and tear. For example, simple wearing down of carpet and drapes because of normal use or aging would constitute normal wear and tear. A few spots and moderate dirt are also probably normal wear and tear. However, massive rips or permanent stains will likely exceed a reasonable definition of the term, and would justify a deduction from the tenant’s security deposit.

When it comes to walls, minor marks or nicks are normal wear and tear, and are the landlord’s responsibility to fix. On the other hand, several holes that require filling, patching, and repainting could justify withholding the cost of repair from the tenant’s security deposit.

Deciding whether something constitutes normal wear and tear generally involves subjective discretion. If you think you have been charged for normal wear and tear though, you should fight to have that portion of your security deposit returned.

The Difficulty of Challenging a Variance

Challenging a variance in California can be very difficult.  In the recent case of Eskeland v. City of Del Mar, 224 Cal. App. 4th 936 (4th Dist. 2014), a property owner purchased a home with a pre-existing non-conforming structure. His front lawn was shorter than 20 feet, violating the city’s zoning ordinances. On top of that, he wanted to build a new house on the same, non-conforming footprint as the house he bought, because the steep elevation on one side of his property made it unfeasible to remodel in a way that did meet the zoning requirements. He applied for a variance, which was conditionally granted.  His neighbors tried to prevent him from going through with the remodel,  arguing that his plans were in violation of the city’s municipal codes. Earlier in the year, a court ruled that he could keep the house’s footprint as it was when he bought it, and build a new house on the footprint too. This case provides valuable guidance for California property owners regarding variances and non-conforming structures.

 

For one thing, if a property owner has the City Council’s approval for a variance, it will be very difficult for neighbors to successfully fight it. As the California Supreme Court has affirmed, administrative decisions are given a strong presumption of correctness, so successfully appealing such a decision to the courts will be difficult.

Furthermore, when an administrative board approves a non-conforming structure, those opposed to it will have the burden of showing an abuse of discretion on the part of the administrative body. This is a difficult burden to overcome, because it will require proving that the structure is objectively unworthy of being granted a variance.

Also, even if the neighbors were able to prove that the administrative board could have ruled another way which was just as reasonable or more reasonable, that is not enough to overcome the burden of proof.  The neighbors will have to prove that the administrative board’s finding was unreasonable given the circumstances.

Finally, it is important to understand that variances are granted based on a balancing test of feasibility and hardships. In this case, the city council determined that although it was technically feasible for the property owner to remodel in a way that met the zoning requirements by re-leveling the entire area, re-leveling would be an unreasonable hardship. In the end, this was one of the main reasons why the Court of Appeals denied the neighbor’s challenges to his plans.

Requirements of a Properly Formed Business Entity

There are a number of options when it comes to choosing a business entity for a particular organization or business venture.  Business owners and entrepreneurs can greatly limit their personal liability by forming a business entity or reorganizing a business. Which entity is best suited to a particular owner, organization, or business venture will depend on evaluating which entity is most aligned with their business model and objectives. In California, entity options include a Corporation, a Limited Liability Company (LLC), a Limited Partnership (LP), a General Partnership (GP), and a Limited Liability Partnership (LLP).

Forming a Business Entity

Each business entity offers unique estate planning and tax benefits, as well as different levels of liability and asset protection. However, to take advantage of the protections that each entity offers, all of the statutory requirements must be strictly followed to ensure that the entity is duly and validly formed.

When forming a business entity the following entity-specific documents, among others, must be filed with the California Secretary of State.

  • Corporation: Articles of Incorporation
  • LLC:  Articles of Organization
  • LP: Certificate of Limited Partnership
  • GP:  Statement of Partnership Authority
  • LLP:  Application to Register a Limited Liability Partnership

In addition to these documents, each entity will usually need to elect or maintain an officer, director, member, or partner, as well as conduct an organizational meeting with documented “minutes” of the meeting. Failure to follow the statutory formation procedures could mean that, if sued, a court may find the owners personally accountable for the entity’s obligations and liabilities.