Release Date: 4/7/2015
QUESTION: I attended a continuing education class recently on the subject of property management. The instructor mentioned that property managers may not require full deep cleans and professional carpet cleans in a lease. He also mentioned that property managers may not deduct the costs of those types of services from the tenant's security deposit in the event the tenant fails to fully clean the premises when the lease ends. My firm attaches an addendum to all of our residential leases which requires a pre-paid cleaning fee, and states that the fee will be added to the tenant's security deposit. Are our procedures legal?
ANSWER: Not completely. On the positive side, we do not see any problem with a lease provision that requires tenants to clean the leased premises, including the carpets, at the termination of the lease term. NCAR's standard Residential Rental Contract (form 410-T) already includes a similar requirement. Paragraph 16 of that form sets forth "Tenant's Duties Upon Termination". One of those enumerated duties is to "properly sweep and clean the Premises, including plumbing fixtures, refrigerators, stoves and sinks". Attaching an addendum that increases the tenant's cleaning obligations is perfectly legal.
Also on the positive side, we do not see a problem with charging the tenant a fee, in advance, for cleaning the leased premises. In 2012, the Vacation Rental Act was amended to specifically authorize such fees in the context of vacation rentals. Section 42A-17(d) of the Act states: "A vacation rental agreement may include a cleaning fee, the amount of which shall be provided in the agreement, reasonably calculated to cover the costs of cleaning the residential property upon the termination of the tenancy." While there is no similar provision in the Residential Rental Agreements Act (which governs non-vacation tenancies), there is also no prohibition against charging cleaning fees in that statute. We would recommend that any such fee also be " reasonably calculated to cover the costs of cleaning the residential property upon the termination of the tenancy."
What is not permitted is using the tenant's security deposit to pay for routine cleaning of leased premises. Section 42-52 of the Tenant Security Deposit Act states: “The landlord may not withhold as damages part of the security deposit for conditions that are due to normal wear and tear nor may the landlord retain an amount from the security deposit which exceeds his actual damages.” In 2010, in an article published in the Real Estate Bulletin, one of the Real Estate Commission's staff attorneys clarified the meaning of that provision: "(a landlord) may assess a “cleaning fee” against the deposit only in those cases where the tenant has left the premises “filthy” thereby causing damage to the premises. Costs incurred for routine cleaning cannot be charged against the deposit because they are considered part of the normal wear and tear of the premises.”
NCAR provides articles on legal topics as a member service. They are general statements of applicable legal and ethical principles for member education only. They do not constitute legal advice. If you or a client requires legal advice, the services of a private attorney should be sought. Always consult your broker-in-charge when faced with a question relating to the practice of real estate brokerage.
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