Aug 02

Over on the ApartmentAssoc YahooGroups email list a member asks:

I heard that a very large rental company in the area has a Non Standard Rental Provision included with their Rental Agreements that lists each item to be cleaned and how much the tenant will be charged per item if they are not clean upon vacating.

Is this legal?

My reply:

Assuming WI and assuming we are talking about normal cleaning and not the house that was left with dog manure on the living room carpet:

There are actually  three questions presented:  First is it okay to charge a tenant for routine cleaning; Is a list of liquidated damages legal and if so; Can you take these charges out of a security deposit.

It seems pretty clear that you can have a lease that requires a tenant to return the property in the same state of cleanliness as they received it.  A list of charges for cleaning is probably legal.  BUT I do not believe you can take those charges out of a security deposit.  Therefore you would have to give them back the deposit and then sue them for the cleaning if they did not pay.

ATCP 134.06 (3) (c) “This subsection does not authorize a landlord to withhold a security deposit for normal wear and tear, or for other damages or losses for which the tenant cannot reasonably be held responsible under applicable law.

Note: For example, a landlord may not withhold from tenant’s security deposit for routine painting or carpet cleaning, where there is no unusual damage caused by tenant abuse.”

In other areas of the country liquidated damages in residential leases are legal and customary.  I believe that liquidated damages can be a benefit to both parties.  For example in FL the standard one year residential lease has a two months rent clause as liquidated damages for early termination.   There is no arguments over whether the landlord tried hard enough to mitigate the loss and there is no risk to the tenant that they could be on the hook for 11 months rent due to a job change.

This all changes if the cleaning necessary reaches a level of being “waste”.  Then you are entitled to double damages.  The case on waste is:

Three & One Company v. Geilfuss, 178 Wis. 2d 400, 504 N.W.2d 393 (Ct. App. 1993), the Wisconsin Court of Appeals found that tenants who allowed their cats to use the unit as a litter box committed waste. If waste is found the owner is entitled to double the damages pursuant to Wis. Stat. § 844.19.

Law on deposit withholding:

Liquidated damages

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