landlord and garage door opener

[kermeeet]

I lived in a duplex which was sold a year ago. The new landlord was such that I choose to move recently. I received my security deposit less $ 200.00 which he stated was being withheld to replace the garage door opener.

This duplex never had one when I moved in. I put up mine from my previous home to use while I lived there. The previous owner knew it was there. The new landlord states it became a fixture and was to remain at the duplex. I am looking for something to help support my position that he is in error.

 

[HomeGuru]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by kermeeet:
I lived in a duplex which was sold a year ago. The new landlord was such that I choose to move recently. I received my security deposit less $ 200.00 which he stated was being withheld to replace the garage door opener.

This duplex never had one when I moved in. I put up mine from my previous home to use while I lived there. The previous owner knew it was there. The new landlord states it became a fixture and was to remain at the duplex. I am looking for something to help support my position that he is in error.<HR></BLOCKQUOTE>

Next time get an agreement in writing that "the landlord approves the installation of the garage door opener by the tenant, it is the tenants' property and will be removed when the tenant vacates the property". You should have removed the garage door opener when you moved out and restored the home to its original condition by patching the holes in the walls and ceilings. By real estate definition, it is considered a fixture because it is attached to the home. Maybe you can get the landlord to pay you some money for it like $200 and call it even.

You can argue that at the time you lived there, the garage door opener was your property and not a fixture. As such any damage would be a damage to your property not his, so the repair charge is not your liability. He should not charge you the $200 because he is getting a free garage door opener. The garage door opener was yours, it became damaged and you left it in damaged condition; therefore it became his damaged fixture when you moved out.

 

[Tracey]

There are 2 question here: is a garage door opener a fixture, & can L2 charge you for replacing it?

A fixture is "an item of movable property so incorporated into a real property that it may be regarded as legally a part of it." [Merriem-Webster Dictionary of Law] Kitchen cabinets are definitely fixtures. I would argue that GDOs are not fixtures, as they are installed after the home is built and are easily removed by anyone with a #2 Phillips screwdriver. Furthermore, GDOs are not a "durable good" -- they are expected to wear out after a few years & need replacing.

Even if the GDO is a fixture, you still may not have to pay for it. If T installs a fixture with L's permission (which you had from L1) but the fixture remains T's property, L cannot charge T for replacing the fixture unless T installed it incorrectly. L can remove the fixture & charge T for the removal/repair (HomeGuru's patching of holes). If L & T agree that the fixture becomes L's property, L can charge T to replace or repair the fixture, whichever is cheaper. (L has a duty to mitigate damages & can't install a brand new fixture to replace one L got for free anyway.) Check your original lease with L1 & your memory of the conversation: did you two agree that the GDO would stay after you left or that you'd take it with you? An affidavit from L1 would be helpful here.

Here, when L2 bought the duplex, he 'stepped into the shoes' of L1 & cannot assert any claims L1 was barred from asserting. Also, if L2 knew you installed the opener & retained title to ir, but charged you for replacing it anyway, L2's charge was willful & wanton and may entitle you to double or triple your money back.

First, write L2 & protest the charge & demand a full refund in 30 days. Send the letter certified, return receipt & keep a copy. Then sue L2 in small cliams court when he doesn't refund your money in 30 days. Check CA law (tenant's association) to find the exact statute & take a copy of the statute into court with you. It would be best if you could get L1 to testify on your behalf, at least by affidavit.

If this goes to trial, be sure to ask L2 to produce the house sale documents listing the opener as a fixture that goes with the house. L2 will be unlikely to have brought them!

Good luck

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.