Q: We just rented an apartment in a condominium complex. We chose it because it’s accessible for my wife, who uses a wheelchair. We were amazed when the condo owners’ association told us that we cannot have a close-in parking spot for our exclusive use. Instead, they’re suggesting we use a visitor’s spot, which is wheelchair accessible, for pick-up and drop-off, and park permanently in the unit’s designated spot. This spot is far away, on a slope, and next to a pillar — totally unsuited for wheelchair use. Is this legal? –Tom and Sally G.
A: If you were renting in an apartment complex, the answer would be a sure and swift "no!" Apartment communities must give disabled tenants close-in parking if they need it in order to live comfortably and safely on the property. This rule will trump any policies to the contrary, such as a "first-come, first-served" approach to allocating parking spots. If giving a disabled tenant a close-in parking spot means that someone else more senior will be delayed, so be it.
But your situation is a bit different. The condo you’re renting is part of a common-interest development. Typically, residents of these developments own their homes plus an undivided proportional interest (as tenants in common) in the common areas, such as the parking lots and recreation facilities. Condominium associations’ master deeds usually provide that the condominium’s parking spaces are for the non-exclusive use of unit owners. Your association may think that assigning you an exclusive, dedicated parking space would violate the deed provision and take away from the other tenants’ rights to use all of the common areas. If so, this type of change would require a material amendment to the master deed and approval by a specified percentage of the unit owners.
All of this is well and good, but for one thing: Even if the condo association is reading the deed correctly, the federal Fair Housing Amendments Act may still trump. The condo association cannot enforce any aspect of the master deed that, on its face or as applied to a particular situation, violates federal law. (Gittleman v. Woodhaven Condominium Ass’n, Inc., 972 F.Supp. 894 (D.N.J. 1997).) This proposition isn’t so new — it was the basis for using civil rights laws to invalidate the "whites only" provisions that used to appear in some master deeds. No matter what the master deed says, you are entitled to a dedicated parking spot by virtue of the superior authority of the federal fair housing law.
Q: Our lease tells us that we must professionally steam clean the carpets when we move out. We’ve lived here for a year, and have been very careful — in fact, we remove our shoes when inside, and have no pets. I’m sure that with a thorough vacuuming and some spot cleaning, these carpets will be just as clean as when we moved in. Former residents tell us that if we don’t hire a company to steam clean them, the landlord will charge us for that and take it out of our deposit. Is this legal? –Amber A.
A: Whether your landlord could beat a legal challenge to his cleaning clause depends on how closely your state regulates how landlords can use security deposits. It is unlikely that your legislature has passed laws dealing specifically with steam cleaning (interestingly, Oregon legislators are considering such a bill, Senate Bill 771). But it’s highly likely that your lawmakers have described permissible uses for the deposit. If you don’t abide by the clause and your landlord uses the deposit to pay for the service, the deposit law will settle the matter. …CONTINUED
In all states, deposits are meant to cover unpaid rent and damage beyond wear and tear. Some states go further, allowing for necessary cleaning, and some describe how clean the rental must be. For example, in California, the unit must be returned only as clean as it was when the tenancy began (again, taking normal wear and tear into account). This standard is imminently fair, because it incentivizes both landlord and tenant to offer and return a consistently cleaned apartment, whether it’s spotless or just broom clean. Neither side is in a position to take advantage of the other.
If you live in a state like California, you might find that a judge would look askance at a policy that charged tenants for professional steam cleaning, regardless of the actual condition of the rug. When fastidious tenants occupy a rental for a relatively brief period of time, it’s possible that their own efforts (which could involve using a rental steam cleaner from the supermarket) will result in a rug that is as clean as it was when they moved in.
I can hear the landlords reply that only the pros can do the kind of deep cleaning made possible by their superior equipment. If the tenant enjoyed this level of cleanliness when he moved in, application of the "clean in, clean out" rule would suggest that he should hire them again before moving out. Perhaps, but this argument begins to look like an argument for using the deposit to cover refurbishing, and deposits are not intended for this. For example, when you move into an apartment that was freshly painted, you don’t expect a lease clause telling you that you must repaint if you want a full refund of your deposit. Instead, you know that you should leave the walls unmarked, without holes, and so on. If the landlord decides to paint, to make the unit attractive for the next tenant, that’s on his tab. In a word, deposits are not intended for refurbishing or regular maintenance and upkeep.
Keep in mind that you must check your state’s security deposit statute to learn whether it closely constrains landlords’ use of tenants’ deposits. If the statute is vague, then this practice, which is widespread, may be legal in your state.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.
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