Chapter IV: Moving Into Your Apartment

You will be responsible for returning your apartment to your landlord in the same condition that you got it, reasonable wear and tear excepted. It would behoove you then to do what you can to document the condition of the apartment when you first take it over, before you have moved your stuff in. You don’t want to get blamed for damage that was there from the previous tenants or that was made up by the landlord, or was the result of ordinary wear and tear. Some dishonest landlords will charge different tenants for the same damage year after year and just pocket the money. There are several ways to protect yourself from such persons, and it is not rocket science.

A. Video Your Apartment

As soon as you get your keys from your landlord on that first day of your lease term, go out and purchase that day’s newspaper. Then go get a video camera and a tape. As you approach the door of your apartment for the first time with your keys, hold up the newspaper so that the headline date can be seen by the video camera. This will show a Court later on what day you took the video. It will also show the Court what kind of shape the apartment was in on the first day of the rental term.

I know what you’re saying: “My video camera has a time and date stamp on it, I’ll just skip the part about the newspaper.” That’s nice. I also know what your landlord will argue in Court a year later: “Your Honor, the time and date stamp in the corner of the video can be set like a watch and so we really don’t know when the video was taken.” Some Judge might believe the landlord. Don’t give him this out. Make it as hard on him as possible and as easy on yourself as possible down the road. Get a newspaper. The landlord might still try to argue that the newspaper could be old, but old newspapers get yellow fast. If your paper in the video is still not yellow, the Judge will likely believe you.

Walk through the apartment. Be careful to go slowly and note all the conditions with the camera. Make sure that you get all the floors, walls and ceilings. People always forget the ceilings. Replacing ceiling damage can be very expensive, so don’t forget to video the ceilings. Do this in a systematized manner and do it the same way for every room. Don’t just jump right to the obvious things that are wrong with the apartment. Be organized. Video the damages as you come to them. Don’t make editorial comments or jokes while the tape is running. You will sound like a biased fool on the tape. Let the images on the tape speak for themselves.

Be thorough. Get inside the closets, drawers, cabinets, appliances, bathrooms, showers and so on. Show the windows behind the curtains (windows can have cracks and holes in them). Remember that any place that you miss will be the place that your landlord will say the damage you caused was. When you are finished, review the tape in your VCR machine, and if it is acceptable to you, then send it to a safe place for storage. I suggest your parents’ house for safe keeping, or the equivalent.

Don’t tell me that you can’t get a video camera. If you don’t own one, rent or borrow one. Somebody you know has one that they can loan you. If you are stuck with just photographs, well, it’s better than nothing, but how do you time stamp a photograph? If you’ve ever seen a Judge watch a video when its one person’s word against another and compare that to a Judge looking at a few photographs, give me the video every time.

B. Ameliorative Waste

Remember that you must return the apartment in the same condition in which you got it, reasonable wear and tear excepted. Do not make improvements to the apartment without the landlord’s signed, written consent. Read your lease carefully on this one. Some leases provide that the rental agent has no authority to make any changes or important decisions regarding the apartment, and the owner of the property must be contacted. Improvements made without the landlord’s consent are called ameliorative waste, and if the landlord does not like them, then you will be liable for their removal.

You may think that the landlord would love it if you installed a wooden deck in the back of the place. But the argument that the property’s value is actually increased by a bay window in the front, a garbage disposal in the kitchen, or a wooden deck on the back does not win in Court. The argument that you had the landlord’s written consent to install such window, disposal or deck does. A real life example of this can be found in campus area apartments. Most landlords in campus areas (if they are wise) block off the fire places in the older houses that they rent to the students. This is because the students cannot be trusted to maintain a fire without it getting out of control or going unsupervised. Since the landlord does not want his house to burn down because of the actions of drunken tenants, then it makes perfect sense. But you come along and rent the apartment, and want to have romantic fire light discussions with your significant other. You pay some contractor to come in and unblock the fire place and re-connect the gas lines.

You may think that you are doing the landlord a big favor in that the apartment will now be a lot more rentable with a working fire place for those cold winter nights. But in reality, you have tweaked the landlord by committing ameliorative waste, and a court will likely hold you responsible for returning the apartment in the condition that you found it. So the bottom line is, don’t do the landlord any favors unless you have his permission in writing.

C. Fixtures

If you do make improvements (with or without the landlord’s permission), you should realize that you will not be able to take them with you when you leave. There is a sometimes fuzzy line between personal possessions (which are yours before, during and after the rental agreement and can be brought in and taken out at will) and fixtures. For instance, if you purchase a gas grill and sit it out on the back deck, then it will likely remain your property. But if you purchase a gas grill and build it into the deck, and run an underground gas line from the house out to it, it starts to look more like a fixture, and it may become the landlord’s property at the end of the rental term.

When does something become a fixture versus a piece of personal property? In Teaff v. Hewitt (1853), 1 Ohio St. 511, the Ohio Supreme Court adopted the following definition of fixtures:

A fixture is an article which was a chattel [personal possession], but which by being physically annexed or affixed to the realty, became accessory to it and part and parcel of it. But the precise point in the connection with the realty, where the article loses the legal qualities of a chattel and acquires those of the realty, often presents a question of great nicety and sometimes difficult determination.” Id. at
527.

In Teaff, the Court stated that three criterion are used to commonly find whether or not something is a fixture or a piece of personal property:

1st. Actual annexation to the realty, or something appurtenant thereto.
2nd. Appropriation to the use or purpose of that part of the realty with which it is connected.
3rd. The intention of the party making the annexation, to make the article a permanent accession to the freehold — this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made.” 1 Ohio St. at 529-530.

So be careful when you buy something that you do not integrally connect it to the apartment, or a court might someday later see it as a fixture and hence the property of the landlord. For instance, if you have a small refrigerator for your room, don’t go building it into the wall. The same with a dishwasher that you might buy. Buy the ones that roll around on wheels in the kitchen.

D. Delay In Delivery of Possession

Just because your rental agreement gives a definite starting date as to when you can move in, this does not mean that the apartment will be ready at that time. Landlords sometimes have problems delivering up the premises to you in a timely manner. Sometimes this is the landlord’s fault for not being on the stick and scheduling needed repairs, or cleaning and painting in a prompt fashion. But sometimes the problems are outside of the landlord’s control. An example of this would be if the previous tenants refuse to move out when their lease ends. If the landlord has to go through the eviction process, then this could cause up to a one month delay which can hardly be blamed upon the landlord. But at the same time, the new tenants will want to argue why the landlord’s problems should be theirs.

The question becomes one of substantial performance. If the apartment is ready except for a few tiny trivial matters (like the back fence needs painting) then a Court will probably buy the landlord’s substantial performance argument. But if the windows are not in yet and the front door is not attached to the house, the landlord is going to have a harder time making a substantial performance argument. In the case of Belmont Properties Inc., v. Euclid Spiral Paper Tube Corp. 1979 Ohio App. LEXIS 9444 (April 19, 1979), Cuyahoga App. No 38313 (unreported), the Court of Appeals for the Eighth Appellate District quoted from the Ohio Supreme Court and stated as follows:

In Ashley v. Henahan (1897), 56 Ohio St. 559, the Ohio Supreme Court set forth in its syllabus the general rule that “one who seeks to recover on a contract must show substantial performance on his part. . . . But slight omissions and inadvertences [sic] should be disregarded. Where there has been an honest effort by the contractor to perform, and not a willful omission, substantial performance is all that is required.” The decision as to what measure of performance may be considered substantial necessarily rests upon consideration of the facts of each
case.

So the decision of the Judge will depend upon the facts of each case, and I am afraid that no hard and fast rule can be laid down.
Your lease will likely have a clause in it that covers what happens if the landlord cannot deliver the premises on time. Some clauses say that the landlord is responsible to deliver alternate housing until the premises are ready and that the tenants must accept such housing until that time. Other leases say that if the premises aren’t ready within 30 days of the start date of the lease, then the tenants can elect to terminate. You can argue that such clauses are unconscionable, but there is no law either for or against this argument at the time of the writing of this work. In any case, you would be well-served to document your damages from the delay in possession. When you get a hotel room, pay for it by credit card so that the charges show up on your monthly statement. If you must pay cash, then get a receipt from the hotel. Pay for the storage area for your own personal items in the same way. If your present landlord allows you to stay, get receipts for the extra amount of rent that you are paying. If you have to hire a moving van twice, then get receipts for that. A Court will not want to take your word that you had to expend money because of the landlord’s breach. The Court will want to take your word if you have documents to back up what you say.