What damages can my landlord deduct?

05 Mar 2012

A Property24 reader asks:

Can my landlord deduct money from our deposit for repainting the apartment now the lease is expiring?

I hope you can help me - do you have any advice with regards to the laws pertaining to general wear and tear within a rented apartment building once a lease agreement has expired? 

We have recently moved and have patched up the holes in the walls where we hung pictures in the old rented apartment, after being told to do this by the owner. The owner had left a tub of paint on the balcony for the duration of our year lease and it appeared to be of the same colour as the inside walls, however, it was slightly off and is noticeable only when looked at closely after it had dried. 

Yesterday she did a “walk through” with us and stated that we would need to repaint each wall that we had attempted to patch up. She also stated that the paint on the balcony that she had left was not the right colour, but she could also not give us the right colour code, so that we could go out and buy some for touch up. 

She also stated that if we were not able to rectify this ourselves, she would withhold a portion of the deposit to cover costs of professional painters coming in to repaint the walls – and we are assuming that, because she doesn’t even know what the right colour is, they will most likely be told to paint the entire 3 bedroom, 2 bathroom apartment! 

If you can assist, I would be most grateful. 

Alan Levy, an attorney at Alan Levy Attorneys who specialises in evictions, rent recoupment and landlord/tenant law replies:

For the answer to your question one doesn’t have to look too far. 

Firstly one must look at your Lease Agreement, if there is one. You haven’t mentioned there being one and I would be interested to know, if there is one, what terms are provided for therein, relevant to your below query. 

Secondly one must look at the Rental Housing Act, relevant to your query areSections 4 and 5, parts of which are loosely quoted below: 

Section 4 - The landlord's rights against the tenant include the right on termination of a lease to receive the property in a good state of repair, save for fair wear and tear and to claim compensation for damage to the property, if any, caused by the tenant.

Section 5 - On the expiration of the lease, the landlord may apply such deposit towards the payment of all amounts for which the tenant is liable under the lease, including the reasonable cost of repairing damage to the property during the lease period and the balance of the deposit and interest, if any, must then be refunded to the tenant by the landlord not later than 14 days of restoration of the dwelling to the landlord.

Fair wear and tear refers to damage caused by the effluxion of time and is not too relevant to your query. 

You had an obligation to return the property in a good state of repair and the landlord can claim compensation for damage caused by you to the property and can apply the deposit towards such damage. 

The issue, in your particular case, as I see it is, were you correct in assuming that the paint left on the balcony was the paint the landlord would have wanted you to use to touch up and how different are the newly painted areas to the rest of the wall? 

If you were correct in assuming and/or the areas are not so different, the deposit cannot be applied to repaint these areas. If you were incorrect in assuming and/or the areas are different, the deposit may be applied to paint these areas. 

If you and the landlord cannot reach agreement, you can approach your local Rental Housing Tribunal for guidance in the matter. 

Readers may submit questions to Property24’s Guest Expert panel and/or comment below. We may not be able to answer all questions received, but all will be considered. 

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