Can a landlord deduct a paint job that doesn’t fall above ordinary wear and tear?

UPDATED: Oct 1, 2022

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Can a landlord deduct a paint job that doesn’t fall above ordinary wear and tear?

A commercial industrial unit landlord deducted a broken window, paint job and patching out of our security deposit. After a dated picture was shown demonstrating that the broken window was there before the tenant moved in, the landlord agreed to remove the window charge. However, nothing was ever hung on the walls, except for minor dirt spots from artwork leaning on wall. The landlord insists on keeping part of the deposit alleging that a document was singed at the pick up of keys in which is states that tenant must paint the walls before move out. The lease was signed and deposit check were given the same day a week before pick up or keys. The landlord says it does not have such document stored. Even if he has this one page document, would it stand above the lease? Isn’t this considered illegal? After the landlord took the check and accepted the standard lease agreement with the ordinary wear and tear clause? Wouldn’t it be considered that landlord is trying to take advantage of tenant by making them sign such document after, lease has been signed and after check was deposited? Keep in mind, the tenant has left the unit 2 months prior to end of lease and left those 2 months paid in full with the unit unoccupied. Also, the landlord refuses to give proof of damages that are above ordinary wear and tear insisting the alleged extra document stands, even though the landlord says it does not have the document in hand.

Asked on November 21, 2018 under Real Estate Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If the tenant did provably sign a document at any point agreeing to repaint (or else therefore be charged for paint), then this would be legal: a commercial tenant may lawfully agree to take on costs or responsibilities that a residential tenant may not (there are far fewer legal protections for commercial tenants than residential ones), and a lease may be amended or modified by a later signed agreement. So IF the landlord is telling the truth, this is legal. The question then becomes: is the landlord telling the truth? Was there such an agreement and can the landlord prove its existence and terms? If the landlord cannot, then the provisions of the lease (e.g. the standard wear-and-tear provision) would control and the landord could not charge for painting occasioned only by wear and tear.

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