When your landlord ignores the law, do you just give up?
When landlords prey on the security deposits of unwitting tenants
This is “Field Notes,” where I tell the stories of real humans navigating the bitter and the sweet of the legal system. I’m a law student at Cornell planning to start a legal aid clinic after graduating. Follow my journey on this Substack!
When C walked in the door, he was hit by an odor. Crud poked into the soles of his feet. He had subleased this studio apartment for the last six months of a four year lease and found the place in a sorry state: grime and stains caked on the bathroom floor, crumbs and dust littering in kitchen corners, coats piled like wilted leaves in the hallway closet. C then remembered what he had read on the lease he signed: “place must be left very clean…as if neither party could make visible improvement to the surface in question.” C had unequivocally affixed his signature to the paper. He now feared that he alone would bear any cleaning costs the landlord charged.
The twin systems of the courts and legislatures interweave to protect people by refusing to enforce certain contracts. In New York, for instance, you can’t sign away your right to a heating unit, or a door that can lock, or a working toilet.
In this case, it so happens that the landlord cannot expect an apartment to be move-in ready when the tenant leaves. She is responsible for fixing up “ordinary wear and tear” (see part 1a-(b)). You’d be surprised at what counts. Courts have held that carpet cleaning, window washing, painting, removing garbage, cleaning up dog hair and scrubbing stains out of the sink, all constitute repairing damage from ordinary wear and tear. A heuristic used by the court is: If the habitation can be made rentable within a day, then the landlord cannot deduct a security deposit for it.
C’s apartment was cleaned within a day. The landlord had to provide an itemized statement (see 1a-(d) and (e)) of what she did to make the apartment move-in ready. She listed wiping down surfaces and moving a shelf out to the dumpster. She listed wiping the inside of the refrigerator and vacuuming the floor. She did not list needing to paint walls or replace carpets or repair windows. The final charge was over $600.
So I drafted an email for C to send, telling his landlord that she had not only unlawfully deducted from his security deposit for general cleaning fees, but that she had mailed it out late (a security deposit must be returned 14 days after you vacate (see 1a-(e)). For both reasons, he was entitled to the security deposit in entirety.
A day later, C forwarded me the landlord’s response. Two lines: “I already returned your security deposit. I am not refunding anything further.”
C surprised me more. As I glanced over his email to the landlord, I realized that he had removed in substantial sum parts of the letter I had drafted. Some of the assertive language was gone, some of the forceful rhetoric dulled down, but most scathingly, he removed the argument about not charging for cleaning fees.
Why C? I texted. He responded: I had a friend who also tried to argue with her landlord that general cleaning fees couldn’t be deducted and it hadn’t worked.
He had the court-quoted, attorney-approved language right in front of him. He decided to strike it out with his own hand.
I said: C– going forward, just remember that it’s worth trying all your arguments, especially because you don’t know how this landlord will react.
C had the upper hand, after all. He had the law on his side. If we went to court, he’d win. And he’d win big: small claims courts in New York levy penalties on delinquent landlords (meaning you receive multiple times your deposit back).
No lawyer was fastidiously poring over this landlord’s actions to ensure she had a bulletproof case in the off-chance she ended up in court. She appeared to be DIY-ing her landlordship. For instance, she said in writing that she never provided itemized statements of cleaning that had to be done, in blatant violation of law. C prompted her for the itemized statement. She subsequently (I guess) Googled what he’d asked for, then mocked up a statement.
But C had to last through the court battles. The girlfriend of one of my colleagues at the law school has been in court hearings for the last year trying to get her security deposit back from a New York City landlord. She has the gumption to fight for it because she has capital of her own– a degree from an Ivy League University and a partner in law school.
He had the court-quoted, attorney-approved language right in front of him. He decided to strike it out with his own hand.
The greatest misconception I’ve had as a budding lawyer is assuming that power held is power exercised. C looked around and thought: Well, all the other landlords charge for general cleaning fees, so this must be how it really works. He’s not alone: A search on Google for “can you deduct cleaning fees from a New York security deposit?” yields Quora users telling each other that “yes, they can.”
People reenact patterns that coarsen into norms. Those norms directly contradict the law. But people don’t count on the law because they don’t see it operating with power.
As an entrepreneur, I chew on this problem: How might we mitigate landlord delinquency in a way that doesn’t put the onus on tenants?
First, lawyers involved in the lease-drafting process need to recommend fair terms. You would think that lawyers are bound by a professional code not to put unlawful terms in contracts, but they do. They rely on the adversarial system, banking on the “other side” to catch the error and ask for a correction. This stopgap breaks down when the “other side” is an individual who likely won’t negotiate the lease they’re handed, let alone hire a lawyer. Lawyers need to be vigilant about how their actions affect people.
Second, I recognize that some landlords are simply oppressive. This side of history, human evil persists. But how might we change norms set by landlords?
For instance, one could spread a cautionary tale: Don’t sour your relationship with your tenant now, as you might be stuck with that tenant until the end of the lease, since courts tend to disallow evictions before the lease is up. Or, did you know that tenants can withhold rent if you don’t fix that broken toilet? Do you really want to have to hire a lawyer for thousands of dollars to go through court to get that rent back, when you could have fixed the toilet for $500?
I sympathize with landlords – regulations binding them are complicated and confusing. There’s a lot of administrative work that even the most diligent person can screw up. If we lower the activation energy by recommending resources to stay on top of all the rent receipts and notices and itemized statements, perhaps more landlords will follow the law.
Finally, are there ways we can enforce norms within a community? Landlords might willingly become part of a club or professional organization that renders benefits: to share ways to deal with tough tenants, or simply rant about them; to learn how to benefit from tax credits and other home ownership perks; to discover how to DIY an easy repair. With benefits come mutually enforced obligations: to belong to this organization of landlords, members need to conduct themselves lawfully and honorably.
Those are just some thoughts. Maybe they’re too idealistic. Maybe they’re just within reach. I’d love to hear from you at allisoninwonderland@substack.com.
Is this true in New York only, or in New Jersey, too? The lease on my last apartment said we had to pay a professional cleaning fee when we moved out, but the landlord didn’t use our security deposit for it.