Who is right – the tenant or the landlord? What rights and obligations do both parties have? And is assessing the level of whiteness of the walls an exaggeration? – From a legal point of view, I must say: it depends – comments attorney Katarzyna Trojanowska-Janik, a specialist in real estate law. However, he emphasizes that landlords must be ready for apartments to deteriorate.
A man walks around an empty apartment, using a cell phone flashlight to illuminate the wall. “He is looking for shades of white. He expects the entire walls to be painted white after six months of rent,” the caption reads. Then a vulgar word is uttered directed at “landlords”, i.e. people who provide premises for rent.
At the end of October, the entry went viral on the social networking site Twitter (now X) – it was viewed over 2.5 million times. There were plenty of comments from other people who also had bad experiences with landlords.
“A guy came to my place with a white glove to check the dust and a UV lamp to look for water stains,” someone wrote. Someone else echoed: “He wanted to deduct PLN 200 from my deposit for a slightly torn carpet.” “When handing over the apartment, (the owner) lifted all the carpets, asked what were the gaps between the panels, and said that we either put a new floor or he wouldn't refund the deposit,” added a third person. “It wasn't visible even at first glance, so imagine how he used a magnifying glass to look over every element of the apartment just to find traces of use after two years of living” (original spelling everywhere – ed.).
But the “landlords” also have their reasons. A couple recently talked about it on Tik-Tok, showing the condition of their apartment after renting: a kitchen that looks like someone was cutting directly on the counter, damaged furniture. Before anyone can move in there again, a major renovation needs to be carried out.
There are two people in the drama: the landlord and the tenant. The first one is the owner of the apartment. The second one – the person who rents the premises. Their perspectives are radically different.
If we look at the tenant from the perspective of a “landlord”, we see a person who does not respect the apartment and leads it to ruin through reckless use. From the tenant's perspective, the landlord is an exploiter who expects someone else to repay his loan and then return the apartment unchanged. And the truth is somewhere in the middle.
What's the deal?
And who is right? What rights and obligations do both parties have? And is assessing the level of whiteness of the walls an exaggeration? – From a legal point of view, I must say: it depends – comments attorney Katarzyna Trojanowska-Janik, a specialist in real estate law, in particular in the field of lease of residential and commercial premises.
The answer depends on what the landlord and tenant agreed to when signing the contract. It can be agreed, for example, that the premises are to be repainted after the end of the lease, and the walls cannot show any signs of use. The landlord then has the right to force the apartment to be brought to the condition agreed upon by both parties. The situation is different if it is decided to include a provision on the allowable wear resulting from proper use. – Then checking the walls or floor with a flashlight is pointless, because the tenant is not responsible for such traces – explains the lawyer.
So it all depends on the content of the contract, but also on its type. As the lawyer explains to us, certain issues are regulated differently by law depending on whether we are dealing with ordinary or occasional/institutional lease. The latter type better protects the landlord, e.g. against squatters, but also requires more formalities. That is why ordinary lease is more common.
So let's start with him. – In this case, the tenant's obligations regarding repairs, renovations and the condition in which the premises are to be left are regulated by the provisions of the Act on the Protection of Tenants' Rights. And according to the content of this act, after the end of the lease, the tenant is obliged to renovate the premises and replace worn-out equipment with new ones – explains Trojanowska-Janik. As he adds, based on the literal wording of the regulations, the premises “cannot bear traces of use.”
The situation is different in the case of occasional or institutional rental. – Then the provisions of the Civil Code apply to the issues we discuss. And here it is much milder – emphasizes the lawyer. – Pursuant to the regulations, the tenant is obliged to return the premises in a non-deteriorated condition, but is not responsible for wear and tear resulting from proper use.
“Proper use” is a term that often appears in contracts. We'll come back to it in a moment.
The condition has not deteriorated, but… it may get worse
The regulations are regulations, but some things can also be agreed individually and specified in the contract. The principle of freedom of contract allows this. Thanks to this, the landlord and the tenant can jointly decide, before preparing the documents, e.g. what the premises should look like after the end of the lease, whether it should be repainted or, for example, commissioned cleaning by a professional company.
It is worth specifying who will repair typical faults, e.g. who is responsible for replacing light bulbs, a leaking tap, a broken refrigerator or a clogged shower tray drain. Similarly, you can determine who is responsible for the care of the elements of the premises that require special care: floor sanding, oiling countertops or air conditioning inspection. Who will take care of it and who will bear the costs?
But there are also limits to free arrangements.
– The contract cannot violate, for example, the principles of social coexistence. Therefore, for example, imposing an obligation on the tenant to repaint the walls in the premises every 3 months is unacceptable – emphasizes Trojanowska-Janik.
Lease and different perspectives
Most contracts include a provision that the tenant must return the premises in a non-deteriorated condition, but wear and tear resulting from proper/normal use is allowed. – This means that the tenant may return the premises in a deteriorated condition – the lawyer points out. – The premises may show traces of use, it does not have to be like new. However, the tenant must be able to demonstrate that these traces result from proper use.
And this is where the stairs begin.
What does “normal use” mean?
What does “wear and tear resulting from normal use” actually mean? As it turns out, not everyone is the same. – Honestly, I really don't like this term – says attorney Trojanowska-Janik. – In my opinion, it only leads to disputes. This is because it is a very imprecise, non-specific and, worst of all, subjective term. The regulations do not provide a list of what can be considered normal wear and tear and what is not. There are, of course, court decisions from which you can draw knowledge, but they are not binding, they concern a specific situation, and this is not the knowledge that typical tenants and landlords have.
Whether the premises were “properly used” may be assessed differently by the landlord and the tenant. If the matter cannot be resolved amicably, the court expert and the court may also express their opinion. – Each of these people may have a different opinion, a different sense of “cleanliness”, order or aesthetics – the lawyer points out. – In addition, tenants most often move into premises that have been in use for several years and already show signs of use.
Trojanowska-Janik is often asked what qualifies as normal wear and tear. Is a scratch on the wall acceptable? And if so, how deep? What about scratches on the furniture? Or dirt on the couch? Unfortunately, there is no simple answer to such questions. You can treat “correct use” as a hint. From this perspective, dirt on the wall is normal, but a picture painted by a child with a crayon is not. After all, treating a wall like a canvas is not a “normal”, “correct” or “typical” way of using it.
– The assessment of whether the proper use of the premises has been exceeded is made on the basis of the principles of average use of the premises. It is being examined how the average person uses the premises – explains the lawyer. – The standard of equipment, its condition and the purpose of the lease are taken into account. For example, more damage is caused to the floor in a service premises where customers come than in a residential premises where one person lives. A more specific factor in assessing whether the proper use has been exceeded is to examine whether the same rent can be obtained for renting the premises as before the commencement of the lease.
Lease and different perspectives
Apartments are falling apart, it's normal
We find an apartment and quickly sign the contract. We often do not read the detailed records. Problems arise when moving out. As in the case of Jacek, who writes on Twitter: “My landlord did not return my deposit because after 7 years of living in the apartment (+4 years for others before me), the repainted apartment is not as fresh as the new one, and the stairs are slightly worn at the edges. “Moisture in the shower without ventilation.”
According to Trojanowska-Janik, such disputes result from, among others, from imprecise contracts that do not clearly state what the landlord's and tenant's obligations are, and what the premises should look like after the end of the lease. The better the contract is constructed, the greater the chances of avoiding disputes.
Sometimes the lack of conversation is also a problem. – I always encourage you to discuss your requirements with the other party before signing the contract – suggests the lawyer. – The landlord should clearly state what he cares about. It happens that the contract only refers to the article number of the act or code, without mentioning their content. However, the tenant – often a student or young person – does not check what is included in these regulations and does not read the contract carefully. Later he is unpleasantly surprised, because the regulations stipulate that the tenant must renovate, repaint and repair doors, windows and floors. And a conflict arises that could be avoided if the parties showed good will, discussed the contract before concluding it and were precise.
The handover and acceptance protocol together with photos of the premises taken on the day of issue are also very important. – This is the most important piece of evidence on the basis of which the condition of the premises and the level of damage or wear and tear are assessed – points out Trojanowska-Janik. – Most often, these protocols are prepared haphazardly. Preparing a proper report is in the interest of every tenant, but unfortunately tenants rarely think about it.
But there is also the other side of the coin. Landlords should not expect that nothing will change in the apartment they are renting. – It is important that landlords realize that when they rent their premises, they agree that the tenant will simply live in the premises, and therefore also use elements of the premises' equipment. Every landlord should be prepared for such “cost” and risk – he sums up.
Main photo source: Shutterstock