Q: After several years, the tenants I lease an apartment to bought a house. During their stay at my apartment, the leases they signed had a clause prohibiting smoking.

Now that they moved out, I have come to find out that there are cigarette burns on the carpet and vinyl kitchen floor. The carpet was new when they moved in, and the floor was put in shortly before they moved in. Their security deposit will not be enough to cover the damage. I am prepared to take them to court to recover the money I will have to spend on repairs and replacements.

Can I expect to recover the replacement value of the carpet and floor?

A: Most leases require tenants to return the property to the landlord in the same condition it was given to them, except for ordinary wear and tear. In your case it seems clear that your tenants not only violated the terms of the lease by permitting smoking in the apartment but caused damage as a result of the smoking.

While the laws of each state may differ and your recovery will depend on your circumstances, it seems that you should have the ability to replace the carpet and the flooring if they can’t be repaired.

Some courts may give you the amount of cash you spent on the carpeting and flooring minus a certain amount based on what would have been ordinary use. Others may allow you to replace them and have your former tenants pay for the whole thing.

Your lease may provide that in case your tenant damaged the apartment, you have the right to restore it to the condition it was supposed to be given to you. If you are allowed under the lease to replace the carpet and the flooring, you should be able to recover these costs when you sue your former tenants.

Furthermore, your lease may have a clause that allows you to recover attorneys’ fees and cost if you prevail in the litigation with your tenants. Take a look. If the lease specifies the recovery of attorneys’ fees, you may wish to consult with an attorney to have him or her file suit on your behalf.

Published: Feb 18, 2005