by Robert Griswold
Q: We recently moved out of an apartment we rented for four years. Our lease allowed us to have a dog. We were very neat and clean tenants, and the owner came over often during the tenancy to make minor repairs and not once mentioned any concerns about our housekeeping.
When we moved out, the landlord walked the apartment and noted how well we kept the place. Nothing was brought up about any charges or deductions, so when we received our security deposit statement we were shocked to see that the owner kept our entire $1,800 deposit and was seeking an additional $2,300 claiming that he had to replace the carpeting throughout the entire house because of “dog odor.”
The dog was potty trained and someone was at home every day, so we are confident that the dog did not urinate or defecate in the apartment. I can understand that we might be desensitized to our dog, but none of our friends or relatives ever said anything about smelling a dog odor.
The landlord filed a small claims action and we lost in court and must decide whether to appeal the decision, as we have a judgment against us for $2,300.
We think the problem arose after we moved out, when the landlord had the carpet cleaned and then closed up the apartment for a couple of weeks. When he re-entered he claimed there was a “dog odor,” which was described in court by his daughter as sort of like “dog B.O.” I would think that any apartment where the carpet hadn’t dried properly would have a certain smell to it.
We believe that the landlord wanted to recarpet his apartment because he was letting his daughter move in, and he sued us to pay for it. The landlord admitted in court that the apartment and the carpet “looked great” when we moved out. In fact, he said the carpet installer told him, “It’s a shame to have to replace this carpet, it looks so good.”
I am upset because I feel I did everything that a good tenant is supposed to do. We kept the place clean, I cleaned the carpet often; we didn’t abuse or trash the place in any way; and now I am being penalized. I presented several signed statements disputing that there was any noticeable dog odor, and I pointed out that this alleged problem was first mentioned after he’d had the carpet “cleaned” and then sealed the place up during the hottest week of the year. Do you think we should appeal or just pay the money and forget about it?
A: You are not just trying to reduce or defeat the $2,300 judgment, but you really have the full $4,100 at stake, as that is the amount the landlord claims the new carpeting cost. First, I would say that this seems to be an exorbitant amount for an apartment carpet even if it was 2,000 square feet. Also, you shouldn’t be charged for the full value of the carpet, as you did live there for only four years and the carpet may not have even been brand-new when you moved in.
I would suggest that you contact a tenants’ rights attorney and have them review your paperwork and give you their perspective on an appeal of your case. In many jurisdictions, an appeal of a small claims or limited jurisdiction court judgment will be a trial de novo. A trial de novo is a full and completely new trial on all of the issues, and usually you can be represented by counsel.
The fact that you lost at small claims is not relevant and you may have much better results with an attorney who knows the landlord’s burden of proof and the law. Just filing the appeal and retaining an attorney might prompt the landlord to settle for a more reasonable sum since the landlord will have to also hire an attorney and will incur costs to defend this new hearing.
I am not an attorney but I think a key element will be the landlord’s failure to provide the court with third-party proof of damage by a professional. His personal opinion and his daughter’s biased comment about “dog B.O.” is not the same as a carpet cleaning professional. Insist on getting copies of the receipts for the initial carpet cleaning service performed right after you moved out to see if that company noted any unusual odor or problems and indicated such in writing. If they did, they would not have cleaned the carpet but advised the owner that they recommend replacing the carpet. They can also confirm that it is extremely important to properly dry a carpet that has just been steam-cleaned and that an odor can develop if this is not done.
This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies.”
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