What Is "As-Is?"

…In which a reader learns, through the power of IM, the definition of the contractual clause “As-Is,” and how it applies to the damaged apartment he subleased…

shash : I wanted your opinion on an apartment issue that I was having. I’m trying to secure my security deposit from my landlord. I subleased the apartment in January from another student and signed an addendum stating that I was taking the apartment as is from the previous tenent. No one from the leasing company came to do any sort of walk through or clean up, it was all left to me. When I moved in, I took photos of all of the rooms and damage that was there as well as emailed the landlord notifying them of the situation. They said that there was nothing they could do about it at that point since I decided to take the apartment as is.

shash: Now that I am about to move out, I emailed them to find out what I need to do to guarentee my security deposit while not getting blamed for any damage in the apartment which was there previous to my moving in. The landlord is claiming that I am responsible for it since I signed the addendum saying that I would take the apartment as is and that I should have taken care of the damages with the previous tenent.

shash: I feel like they are going to try to screw me over and keep my money. Is there something I can do about this? None of the damage that is in the apartment was inflicted by me, and I have evidence of all of the damage that was there previous to me moving in. They can’t hold me responsible for something I didn’t do, can they?

shash: Any input or thoughts would be really appreciated. I didn’t know who else to turn to.

benpopken: I think you’re plumb out of luck

benpopken: taking something “As Is” is pretty straightforward: you accept the item, warts and all

benpopken: sorry to say but i think you’re on the hook for any and all damages

benpopken: probably why the person made you sign an as-is agreement

shash: Thanks for your help. It sucks that I got roped like this.

benpopken: Yeah, caveat emptor!

shash: That has never rung more true.

Wikipedia says:

As is (or as-is) is a legal term and concept used to disclaim liability for an item being sold. “As-is” denotes that the seller is selling, and the buyer is buying an item in whatever condition it presently exists, and that the buyer is accepting the item “with all faults”, whether or not immediately apparent. This is the classic “buyer beware” situation, where the careful buyer should take the time to examine the item before accepting it, or obtain expert advice.

And now you know. Next time you’re thinking of taking something as-is, know that you’re taking full responsibility for the item with no warranties or disclaimers. Look the gift horse in the mouth before signing.

Are we right? Does As-Is apply this way to apartments? — BEN POPKEN

UPDATE: We asked Sam Glover, debt and renter lawyer and Consumerist contributor and he said:

….a sublessee assumes responsibility for the lease–including all damages–from the sublessor. If he wants to recover, he will indeed have to sue the previous tenant.


Edit Your Comment

  1. nweaver says:

    This might not be the case for the rental, as this is a rental, not buying a car or suchlike.

    EG, if you are in CA and have nice documentation about the state of themove-in condition, you might not be liable for any damage.

  2. xip says:

    This sounds kind of shady to me. Generally as-is means that you can’t complain about previous damage, but it doesn’t mean that you’re responsible for fixing previous damage. It depends on the wording of the contract, but you may be able to fight it.

  3. TedOnion says:

    Accepting the apartment “as is” does not equal accepting responsibility for the damage previously done to the apartment.

    If your deposit is not returned, take your case to small claims court.

  4. MadMolecule says:

    Small claims court is a good idea. Bring the suit against the former tenant, not against the landlord.

  5. SOhp101 says:

    Small claims.

    I sincerely hope you took pictures of the apartment before you moved in, and make sure you take pictures after. Take him to small claims; he can’t make you liable for previous renter’s damages, even with an ‘as-is’ claim. Easy win.

  6. grouse says:

    Wow, that’s some really bad advice, Ben. There’s no way that an “as is” clause makes you responsible for making good the defects in your rental. There may be something else in your contract that says that–for example, if you specifically agreed to accept liabilities caused by the previous tenant. “As is” is not enough.

  7. Skeptic says:

    INAL, but I would think that for a rental “As Is” means that you don’t expect the landlord to make any improvements, not that you are financially responsible for previous damage upon leaving. In fact, the As Is clause may make it impossible for the landlord to claim that their is damage now that their wasn’t then since he has implicitly admitted that the apartment was not in good condition when you took it.

    Also, depending on the law where you live there may be rights that you can’t give up no matter what you sign. For instance, if there is a law that says a landlord can’t collect more than a month’s rent as a deposit you can’t sign a waiver to let him charge more and if you did sign such a waiver it would be void and unenforceable.

  8. dbeahn says:

    “as is” means just that. You accept responsibility for any and all damages from the former tenant, and accept the place “as is”.

  9. levenhopper says:

    ya, she took it with the conditions “as-is”
    but…if she didn’t cause the damage, she shouldn’t be held responsible

    however, i think she is S.O.L., which is too sad.

  10. Skeptic says:

    “as is” means just that. You accept responsibility for any and all damages from the former tenant, and accept the place “as is”.

    I think you are leaving something out. It means that you’ll accept the apartment as sufficient to live in, not that you are responsible for paying for every repairing single thing that is wrong with the apartment at the time you take occupancy. Such a duty would have to be set out explicitly in the contract, not implicitly, IMO.

    (I’m Still NAL…)

  11. E-Bell says:

    I am a lawyer, but landlord-tenant law is not my specialty; please don’t rely on my advice.

    It is possible that the “as is” clause may indeed make you responsible for any damages caused by the prior tenant. In effect, you’re stepping into his shoes, taking over both his benefits (the apartment) as well as his responsibilities (paying rent, not fucking up the place).

    Regardless, who do you think the landlord is going to go after? The former tenant, who lives God-knows-where? Or the current tenant, who has foolishly put up a damage deposit, even though the prior tenant probably already put one up.

    I think it’s definitely worth fighting in small claims court. Don’t forget to sue the prior tenant as well – if you are found liable for the damage, you may have a cause of action against the prior tenant.

  12. Curiosity says:

    You need to look at the contract. First, You need to see if you assume the rights and duties of the person who leased the apartment – Did you actually sublease, did you assume the lease, were you assigned the lease, etc…. You also probably should see a lawyer. Property law is a horribly location specific type of law, not only taylored to the State but also the City.
    He should provide a solution that gets to the bottom line, $ and fault.

    I would think that taking an apartment “As is” however not only depends on the law, but exactly what you agreed to and what property rights the previous tenant can actually give. These are factual questions and any lawyer (even me) would hesitate to give out advice without hearing more and seeing the documents involved.

    Just don’t sign anything with the actual owner of the building before investigating your options.

  13. ganzhimself says:

    My guess is that the person subleased the apartment and upon taking up the sublease, he took over the lease that the original tenant had. If he had an as-is agreement with the original tenant, he’s basically screwed. He took the apartment knowing that the damage was there and agreed that the damage would be his responsibility. Odds are that damage wasn’t there when the original tenant moved in, and now, the subleaser is stuck with it.

  14. gypsychk says:

    “I subleased the apartment in January from another student and signed an addendum stating that I was taking the apartment as is from the previous tenent.”

    I think it’s the fact that you subleased that’s going to pop you, here.

    INAL, but I would say if the previous tenant was refunded his/her deposit, take him/her to small claims for the damages. If that person’s deposit was kept, take the landlord to small claims.

  15. Fuzz says:

    You are responsible.

    It is quite simple, look at it this way. . .

    The landlord and previous tenant had an agreement that was, when the lease expired, an inspection would take place, and any damage would be repaired or paid for, or taken from the security deposit. When you took over the lease from the previous tenant(not the landlord) you took over the agreement he had with the landlord. Any damages rest with the agreement, regardless of who is holding it. And since you also accepted the takeover “as-is”, you can’t expect the previous tenant to be responsible either.

  16. K-Bo says:

    To everyone who is saying as-is doesn’t mean you agree to pay for damage to an apartment, you are right, except in the case of a sub lease. Sub lease papers typically state that the owner is cutting all ties to the person moving out, and the person moving in accepts all responsibilities of the original lessee. We got around this when my old roommate moved out and a new moved in by having the 2 of them do a walk through, and deciding on a set amount to take off the deposit for any damage. Not all sub leases go like this, but in my understanding most are. One question though that might make a difference: Did you pay your deposit to the old roommate or the owner. If you paid it to the old roommate, it was your job to find damages and agree on an amount to pay. If you paid to the owner, it means they paid the old tenant back their deposit, which they shouldn’t have done without a walk through.

  17. Kirzen says:

    I’m not sure that people understand the situation fully when they’re talking about taking over a lease from someone else. IANAL & I’m in Canada, YMMV and your legalities may be different, but here’s the deal up here:

    There are two different ways to take on a lease from another tenant, you can sub-let, at which point your name is added to the lease under the sub-let clause in the lease. The original tenant is still fully responsible for the lease and the condition of the apartment when the lease expires and you vacate the premises. You would use something like this to say, add your girlfriend to your lease so that she can stay in your single bedroom apartment with you, because normally if your name isn’t on the lease, you are considered a guest (there are all sorts of rules on guests that I won’t extrapolate on).

    The second way to take on a lease is to have it signed over into your name. This is much the same as taking over the lease on a piece of property. The original lease holder passes it directly to you in whatever condition its currently in. Typically this comes with some behind the back dealings, because you have to juggle the security deposit. Normal scenario would be that you examine the suite, give the thumbs up, the previous tenant signs over the damage deposit to you, and you buy him out with a cheque. At that point he’s out of the picture, the landlord owes -you- the damage deposit, and any damages incurrent fall squarely on your shoulders. He owes ‘you’ the money because the signed paperwork from the previous tenant waves his legal claim to the deposit, and stipulates that ‘you’ are now entitled to it, minus any damages. At this point only your name is on the lease.

    This scenario doesn’t make sense without additional information. Did ‘you’ pay a security deposit? Did the landlord pay out the previous tenant’s security deposit based on the paperwork you signed to state that you would take the suite in its current condition? If so… you’re screwed.

    This is dirty in both directions, but fully legal from my point of view. The previous tenant screwed you by having you sign something that you didn’t understand, and the landlords screwed you by turning a blind eye while he was busy bending you over.

  18. sp3nc3 says:

    Ditto to K-Bo and Fuzz. If he took a damaged apartment from the landlord, he would only be responsible to return it in the condition he received it. But by assuming an as-is sublease from the previous tenant, he assumes the responsibility from the previous tenant to return the apartment to the landlord in the condition when the lease was originally issued.

    Tough beans.

  19. Shrey says:

    Hey everyone,
    I’m the student in question. The addendum states that I have taken over the responsibilities of the lease and that there will be no cleaning or painting of the apartment. The damage is mainly superficial (scuffs on walls, what seems like normal wear and tear). Other than not cleaning or painting the place, I take full responsibility of the lease. The previous tenant received his security deposit back, and I paid mine to the landlord.

    The way everything went down was that I checked out the apartment as the previous tenant was moving out and liked what I saw, and he said that he would clean it before he left. The next time we met was at the lease transfer, but in hindsight I see that my mistake was that I should have checked it out after he was done cleaning it to make sure I didn’t have any more issues.

    What I’m trying to figure out now is if the walkthrough that was conducted when he moved in would be valid when I move out. I don’t have my lease handy with me now, but will probably get my hands on it tomorrow evening (it’s at my parent’s house packed in a box). I’ll try to check frequently and update what’s going on.

    On a quick side note: Does anyone know what constitutes “normal wear-and-tear” on an apartment?

  20. zinghop says:

    I actually researched this very question for weeks at my job at school–how do security deposits work with subleases? In Massachusetts, at least (a very pro-tenant state), there are no real guidelines to how subleases and security deposits work. You should definitely try to get some legal advice from someone in your state before you take any of the above advice. None of it is necessarily wrong, but everything depends on your state. To me, though, the big thing you left out was whether the original tenant received his/her deposit back and whether or not you paid a SECOND deposit–but either way, you need to talk to a lawyer!

  21. banned says:

    Sounds like a case for Judge Judy!

  22. mac-phisto says:

    if you are going to school, see if there’s an off-campus landlord/tenant rep on campus. even if you are legally responsible, you may be able to wrangle your way out of losing your deposit. generally, a university can make a landlord’s life hell if they want to. i used a university housing rep for a landlord issue in school (unlivable apartment due to mold) & got out of an ugly contract with a slumlord.

    the local health department wouldn’t do shit, but when the university stepped in & threatened to force mold inspection of his 40-some houses before they released future housing monies to his tenants, he sent me a bank check for the deposit.

  23. not_seth_brundle says:

    There is a difference between an assignment of a lease (where the assignee would step into the shoes of the existing tenant and take over the existing lease) and a sublease (where the existing lease stays in place and the existing tenant is still on the hook). In the former, yes, shash might be responsible for the damage, but less likely in the latter. But either way, check the terms of the assignment/sublease/whatever it is.

  24. Crazytree says:

    subleases suck!

    and that’s my legal opinion.

  25. cde says:

    “As-is” is not always taking something in whatever condition it is presented. Selling someone a car and then they realized that the car had no engine would fall under “As-Is” since it is reasonable for an average person to figure that out. Selling someone a car without telling them that the car has a transmission problem at 60 miles per hour would not fall under as-is. As-is covers reasonable (or apparent damage) and anything disclosed to the buyer, not hidden damage.

  26. mermaidshoes says:

    i’m with crazytree. deposits suck, too.

    also, it was just not a great idea to put down a deposit without filling out an apartment condition form &/or doing a walkthrough. yeah, it’s good that you took pictures and stuff, but it would’ve been better for management to have something on file (not just an email) regarding the condition of the apartment from the very beginning of your subtenancy (if that’s even a word). the fact that the landlord said at the beginning of your (sub)tenancy that they could do “nothing” about the current apartment condition prolly should have been a clue that you might get screwed over later. the beginning of your lease is the time to make a fuss about accurately recording apartment condition, not the end.

    i say boo to renting… i oughta get me a house.

  27. DeeJayQueue says:

    From what I know, subleases mean that you’re renting the place from the person who is renting it from the landlord. Hence the Sub part. A binding legal agreement still exists between the original tenant and the landlord, and you’re in an agreement with both of them. Otherwise you’re just signing a brand new lease with the landlord. Now, you might still be cutting checks to the landlord for the rent, but ultimately it’s the old tenant’s name that’s still on the lease, and their responsibility to take care of any damages in the end.

    Also, what was the condition of the place when the original tenant moved in? Did they cause the damages for which you’re being held responsible? If the place was messed up before the original tenant moved in there’s no way you could be held responsible for pre-existing damages. Otherwise what’s to stop the landlord from going carte blanche and trying to hold you responsible for things like replacing faucets and bathtubs and flooring and just general stuff and saying it was damaged?

    Without seeing the language of the addendum it’s impossible for us to know exactly what you’re going to be responsible for, but I’d say that you should hold the original tenant responsible.
    The As-Is part was pretty much just meant to say that the landlord wasn’t going to come in and shampoo the rugs and re-paint and hire a cleaning service in between the old tenant moving out and you moving in.

  28. Umm.. I’m confused, did this person, when signing a “sub-lease” somehow pay his OWN security deposit, on top of the security deposit paid by the actual tenant?

    Because that’s what it seems like has happened here. And if he has paid his own security deposit, with verified proof of the state of the apartment AT THE TIME the deposit was made (i.e. no further damage caused by the tenant), then I can’t see a reason he can’t get his deposit back.

    Small claims it is!

  29. lincolnparadox says:

    Something that everyone should keep in mind is that small claims court is a civil court. You don’t have to prove beyond a reasonable doubt to the judge that you were taken for a ride. You just have to prove that the previous tenant is responsible for some damages, which should be paid to you.

    So, clean up/fix the apartment up as well as you can. Work with your landlord and get him on your side. Find out what the shortfall in your security deposit will be and then call the former tenant. See if you can come to some sort of polite arrangement. If you can, great.

    If you can’t, then, sue the pants off of Mr. “As-is.” Ask for your security deposit, plus the supplies and time that it took you to fix the place up, and court costs. Tell your landlord that you plan to sue the former tenant, and that you’d like a statement from him to help your case. Bring that, with your photos and your email records from the landlord, and make your case. My guess is, Mr. As-is won’t show up to court, which will force the judge to decide in absentia, which is very good for you.

    Bottom line, you’ll get some money back. This isn’t a frivolous case.