the property management shop

By Marc Wilson

Q. Two years ago, my tenant had her car towed from the garage so that it could be delivered to her mechanic for repairs. The tow truck driver accidently damaged our garage door. I forwarded the invoices for repair and multiple demands for payment to the tenant and to the tow company to no avail. The tenant and the tow truck driver both refused to accept responsibility and the bills were never paid. Recently, the tenant vacated, and I deducted the cost for the garage door repair from her security deposit. Now the tenant is threatening to take me to small claims court. She claims that I failed to complete a move-out inspection and send written notification of any possible deductions from her security deposit. What should I do?

A. It’s never easy to squeeze water from a rock. I’m afraid that personal responsibility is an all but dead characteristic within the San Francisco tenant community. San Francisco tenants are coddled by their politicians and the San Francisco Rent Board from the inception of their tenancy. Tenants here enjoy no significant rent increases during the life of the tenancy and may only be removed from the unit through just-cause evictions. They have no real exposure to utility rate increases, or laborious and painful capital improvement petitions. They have no worries about roof leaks, appliance malfunctions and broken windows. All they think when something goes wrong is, “Just call the property manager.” What other group of people enjoy this lack of responsibility accompanied by these benefits and entitlements? No one. Some San Francisco tenants share the same sense of responsibility towards their apartments as the common goat has for his barn stall. It should, therefore, be no surprise to you that your tenant doesn’t want to accept responsibility for your busted garage door.

But I digress. I think that you will prevail at small claims court. Fortunately, the SFAA Residential Tenancy Agreement is very clear relative to your tenant’s responsibility for any damage caused by her or her friends, vendors, etc. Item #9 of the SFAA agreement states that tenants are, “responsible for the payment of all costs to remedy damages to the premises regardless of whether such damages were caused by tenant, tenant’s guest or invitees.” This clause is reiterated in Item #19 of the same agreement. Similarly, California Civil Code 1950.5 states that the landlord may use tenants’ security deposits to “remedy and repair damages to the premises . . . caused by the tenant or by a guest or licensee of the tenant.” I don’t see much ambiguity in this language, and I don’t think that your small claims judge will either.

Your tenant is misinterpreting the law regarding security deposits. The intent of this law is to give residents an opportunity to remedy identified deficiencies in their unit prior to vacating the premises. I’m sure most of the readers of this magazine have performed “walkthroughs” and sent subsequent written notifications to tenants relative to the condition of their apartments before they vacated. How in the world can this law pertain to a common area garage door that was broken by the tenant’s vendor two years before she vacated? She broke the garage door, you had it fixed, you submitted the invoices and bills with a demand for payment, and she didn’t pay.  Recouping the cost for this kind of damage is exactly why we have security deposits in the first place. You made a demand for payment, and you presented the bills and invoices—how can she argue that using her security deposit to cover these expenses was in any way a surprise to her or improper in any way? Easy! All one has to do is fail to accept personal responsibility for one’s actions and the sky’s the limit. I’ve been to small claims court at least five times over the last 20 years, and I’ve never lost. The tenant talks and talks and talks, but all she really says is, “I don’t want to pay.” The judge listens and listens and listens, but all he hears is the tenant saying, “I don’t want to pay.” The entire ordeal is painfully embarrassing for all parties.

I have a 100% batting average at small claims court for a few reasons. First, I am always fair and, often times, generous with security deposit dispositions. Stealing money from a tenant who is on his way out the door is just not my style. Second, I always refund the amount of security deposit in contention if the tenant promulgates any kind of a reasonable argument. Fortunately for my tenants, my time has value. There is no way that a trip to small claims court is going to take less than three hours. At a minimum of $200 per hour, the tenant has got to be asking me for more than $600 before I will consider a trip to 400 McAllister St. Small claims court is not about justice. It’s not about teaching someone a lesson. It’s not about getting even. Small claims court is about wasting a small part of your life. I do not have a moral or philosophical problem with simply paying off some crazy tenant instead of going downtown and listening to the same tenant talk pure gibberish for 15 minutes. Respect yourself and respect the value of your time. Don’t give an irrational tenant your time and energy if you can afford not to—that’s what all the money is for.

The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of SFAA or SF Apartment Magazine. David Wasserman is with Wasserman-Stern and can be reached at 415-567-9600 Copyright © 2008 SF Apartment Magazine. All rights reserved.