new-york-state residential-lease tenant
landlord suing me for $5k damage to property. How to prepare (small claims court, White Plains, NY)
<ul>
<li>The dispute: mold and crack in a common bath tub shared by multiple users. Landlord refuses to return deposit until tenant pay for a replacement of bath tub including professional installation.</li>
<li>Signed lease agreement: none. Only some emails.</li>
<li>Venue is White Plains, NY, US</li>
</ul>

<p>I moved in 21 Apr and moved out 18 Nov 2017. Until now landlord has not returned my $750 deposit.</p>

<p>According to landlord, the bath tub was spotless when I moved in, but I could see it had been in use for at least 5 years. There was already another tenant in the other guest room when I moved in. My room had been used by Landlord's son. All of these occupants have only one bath tub to share.</p>

<p>A few months later we noticed minor mold in the bathtub. Landlord insisted (by email) that the other current tenant (Zuhur) and I restore it to the original condition, using our own money to pay for two thirds of the total cost.</p>

<p>There’s no ventilation to prevent mold, but there are many wet objects in the bath room creating moisture.</p>

<p>The crack became visible to everyone a few days after I moved in, when there was another short-term tenant + me sharing the common bathtub. No idea who caused it, but there's a clue -- the plastic (not ceramic) bathtub lacked solid support underneath, so much so that any adult standing on it would notice the base sinking down. This was noticed by all tenants I have spoken to. The wife of the landlord confirmed that the installation was not perfect and missed the support beneath the tub. Unfortunately no one is willing to provide written witness. This crack is probably the main reason for the replacement, even though the landlord has always mentioned it as a second "problem" to be fixed -- his emails always singles out the mold as the primary problem.</p>

<p>In Dec 2017, landlord finally fixed the bathtub. He didn't treat the mold but instead replaced the entire bathtub and sent me a bill over $3000. I replied to say let court decided how much I should pay. Landlord then counter-sued me for $5000 damage to his property.</p>

<p>As to the "ordinary cost of repairs", for mold it should be a few hundred dollars. Total area of mold added up to less than my thumb fingernail. For the crack, total cost is the replacement cost, probably $1000+ rather than the $3000 bill he sent me.</p>

<p>Your rights and responsibilities in this realm are a matter of local law, sometimes down to the level of the city, plus whatever is stipulated in the lease. In <a href="http://library.amlegal.com/nxt/gateway.dll/California/health/article11nuisances?f=templates$fn=default.htm$3.0$vid=amlegal:sanfrancisco_ca$anc=JD_581" rel="nofollow noreferrer">San Francisco</a>, for example, </p>

<blockquote>
  <p>No Person shall have upon any premises or real property owned,
  occupied or controlled by him, or her, or it any public nuisance
  [which includes] Any visible or otherwise demonstrable mold or mildew
  in the interiors of any buildings or facilities</p>
</blockquote>

<p>This does not say whether the owner or the occupant is liable for remediating the situation. Shower mold is gross but not a health hazard (the SF ordinance just lumps all mold into one category).</p>

<p>Since you have no written lease, there is no automatic clean-up requirement. There might be a law requiring a tenant to clean the premise to its original condition, for instance in <a href="http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.130" rel="nofollow noreferrer">Washington</a>, tenant must</p>

<blockquote>
  <p>Upon termination and vacation, restore the premises to their initial
  condition except for reasonable wear and tear or conditions caused by
  failure of the landlord to comply with his or her obligations under
  this chapter.</p>
</blockquote>

<p>Landlord duties are <a href="http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.060" rel="nofollow noreferrer">here</a>: there is no duty to provide ventilation.</p>

<p>However, the bathtub appears to be in a common area and not your particular unit. The landlord duties also require the landlord to</p>

<blockquote>
  <p>Keep any shared or common areas reasonably clean, sanitary, and safe
  from defects increasing the hazards of fire or accident</p>
</blockquote>

<p>so in Washington, it's his problem and not yours.</p>

<p>In general, even if a tenant is responsible for some form of cleanup, that does not constitute legal license for a facility upgrade. It might cost a couple hundred dollars to hire a person to wash ordinary mold accumulation, and does not justify getting a $5,000 new tub. Since this is in a common area, you would not be solely liable for whatever the damage was.</p>

<p>The part where you say "crack in a common bath tub" is a large red flag: it suggests to me that somebody negligently broke the bathtub, and then caused behind-the-wall damage by letting water infiltrate without notifying the landlord. If you broke the tub and let it rot, you could be liable. If the tub was broken already and the landlord didn't bother to do anything about it, that is his negligence.</p>

<p>The three questions that you should try to answer are: (1) what are the duties of landlord and tenant in my jurisdiction, (2) what was the actual harm done, and who did it, (3) what is the ordinary cost of whatever repair was done.</p>
