While there
is no legal definition of the term itself, way back in the 1950s a famous judge,
Lord Denning, said that a tenant “must take proper care of the place…” which
any reasonable tenant would do, and not cause damage willfully or negligently. However, he also said “if the house falls
into disrepair through fair wear and tear or lapse of time, or for any reason
not caused by him, the tenant is not liable to repair it.”
This case
has been referred to over the years in many cases that have reached the Court
of Appeal and continues to be an implied and accepted principle in every tenancy agreement.
In essence,
fair wear and tear is the deterioration of an item or area, due to its age and
normal use. So, you should only propose a deduction from the tenant’s deposit
when the deterioration was avoidable and due to the tenant’s actions or
omissions. Not simply from living in the property.
The big
question is always, what part of any deterioration would have happened
naturally anyway and is considered ‘reasonable’? Or is the damage ‘unreasonable’ if it’s over
and above what is normal use, considering all the circumstances?
The simple fact is that everything will need to be replaced
or renewed at some point in time.
Does fair wear and tear apply to cleanliness?
A very important rule is that fair wear and tear only
applies to the ‘condition’ and not the ‘cleanliness’ of a property or
item. The property must be left cleaned to the same standard at the end of the
tenancy, no matter if the tenancy lasted one year or six!
What is betterment?
You may have heard of the term betterment, which goes
hand-in-hand with assessing fair wear and tear and appropriate cost.
Betterment is where compensation for damaged items would
leave the landlord or property in a better position at the tenant’s expense.
For example, replacing a five year old carpet with a brand new one.
Betterment applies to both ‘condition’ and ‘cleanliness’. A
valid claim where fair wear and tear applies should only relate to the
proportion of damage or deterioration over and above what is reasonable use,
due to the tenant’s actions.
When assessing fair wear and tear, there are five areas we
consider collectively, which I’ll explore below. Having all the information relating
to these five areas to hand should lead to a productive and successful
discussion with your tenant and a mutually acceptable settlement.
Top tip: This is a good time to remember the value of having a quality check-in inventory so that you have good evidence for any negotiation, if needed.
What factors affect fair wear and tear?
Age
Being able to show something’s age is the first step in calculating
a reasonable settlement amount, when assessing the extent of a tenant’s
responsibility – the older the item, the more wear and tear it is likely to
have suffered. You should always consider this when managing your expectation
of what a reasonable cost is. Do you
know the age of your fittings, furniture and décor, and have the invoices to
back it up?
Is a cost being applied for an item which was brand new, or an
area which was free of any damage and marks, when the tenancy began? Or had it already seen several tenancies?
Top tip: Keep all the invoices when you carry out work or replace anything and make sure they are detailed; the date of supply and/or fit will prove the length of time since things were new.
Quality
Spending
more money on quality items is something to consider very carefully for a
rental property and, in terms of calculating fair wear and tear, is most
relevant when claiming for replacement.
Quality
sanitary ware may, for example, last a long time, but it doesn’t mean that
lesser cheaper brands would not last the same amount of time. If a weight is
dropped into a sink, it may crack whatever the quality.
The quality
of an item is relevant in helping to negotiate a like for like replacement cost
yet inventories rarely record the quality of items such as carpets, which
cannot be seen in photographs, or sanitary ware. Was the carpet £7.99 or £16.99
a square metre when it was bought? Again, this means an invoice is invaluable
when proposing costs for a similar item or quality of work needed. However, the
check-in inventory may, at the very least, contain good quality photographs and
detailed description to help with any discussions needed, for example the make
of an appliance.
Top tip: Make sure your detailed invoices are all kept safe as you never know when you might need them for discussing costs on a like for like quality basis.
Who is renting the property – who are your tenants? Are there any pets?
Are your tenants students, professionals, families? Are any
children and/or pets living in the property? How many bedrooms are there and
how many people are renting the property? These questions can all influence the
level of fair wear and tear to be expected and may influence the lifespan of
areas and items in a property.
Deterioration such as scuff marks, scratches and wear to
flooring is unavoidable in all properties. You must consider whether the
deterioration is reasonable, or excessive, for the number of people and whether
there are any pets living in the property. Are the tenants, for example, a
professional couple, a family of four with two young children and a dog, or is
it a student house?
A landlord who manages their own expectations will
appreciate that if the rental property has six bedrooms and the tenants are a
family with three young children and a dog, it is likely to experience a higher
level of wear and tear in all the common areas such as the living room, stairs,
bathroom and kitchen.
If the evidence shows that there is actual damage or deterioration
which is over and above what is reasonable, having considered the type of
tenant living in the property, then the tenant may be responsible for costs to
put right the ‘excessive’ portion.
Top tip: Appreciate who your tenants are and problems can be spotted early if you carry out mid-term inspections.
What is the expected life of the item or area?
The life expectancy of an item, or area, can depend on its
quality and the amount it’s used. This may be related to the number of hours in
the day the property is occupied or the number of tenants in the property.
The quality of the décor and appliances, for example, can
vary drastically. The consistent approach we take, on the life of décor and
carpet in a rented property, is five years. Other items, such as appliances,
work tops, sanitary ware etc. will all be assessed on a case-by-case basis.
When looking to calculate what proportion of a replacement
or redecoration cost is reasonable to discuss with your tenant, you will need
to consider the age and quality of the item, or area, to decide how many years it
has already been used for. Remember, the tenant is not responsible for these
years.
Top tip: Make sure any costs you are proposing do not amount to betterment, as with every tenancy there will have been some wear, no matter how small.
How long was the tenancy?
The last thing to ask yourself when considering fair wear
and tear, and before calculating any costs and proposing them to your tenant is
‘how long has the tenant been living in the property’?
As already mentioned above, there will be more natural wear
to the property the longer it has been lived in. Think about things such as how
much more wear will a carpet or décor have had after one, two or three years,
and what was the condition of it when the tenant moved in?
Top tip: the length of a tenancy is often a deciding factor when managing your own expectations on whether the item or area has little or no value left in it, because of its condition at the start and the length of the tenancy.
Summary
Breaking down any proposed costs for a tenant, by showing
exactly what was considered and how the amount was calculated, using the
criteria above, can help diffuse any potential conflict. The value of good
quality check-in and check-out inspection reports, together with property
visits carried out during the tenancy, plus written records of anything else
that may help in any negotiation such as invoices and emails, will all help.
It is also worth remembering the importance of building a good
relationship from the start of the tenancy. Landlords and tenants who do this and
are reasonable when discussing and listening to each other’s points of view will
often reach a mutual settlement, which allows everyone to move on. That is why
less than three percent of all tenancies result in the need for an independent
decision.
Offering tenants good advice
right from the start, and managing everyone’s expectations throughout, together
with having quality evidence will all help to avoid a formal dispute.
Checklist
Why is fair wear and tear so important?
Everyone
needs to understand that this principle is here to stay, is implied into every
tenancy agreement and must be consideredwhen your tenant has
moved out leaving damage or deterioration. If you are thinking about whether to
propose costs, all the following questions should be asked so that a reasonable
cost can be calculated and discussed, if appropriate.
How old is the item or area?
How long is it since it was new?
Is there an invoice for the purchase or work carried out showing when it was done?
What information is in the check-in inventory on detail, description and photographs?
TIP: A claim for an item that appears to be old from
the start is unlikely to be successful at adjudication. Once an item or area
reaches a certain age, the landlord will be responsible for replacing or
refreshing it. (see lifespan below).
Example: A claim for a replacement sofa which was recorded as being ‘worn’ in the inventory one year earlier, and left with more threadbare seats than before and a loose arm. The evidence is not likely to be clear enough to show that what had happened to the arm was more the normal use, considering the condition of the rest of the sofa.
What is the quality of the item or area?
What records do you have that would demonstrate ‘quality’?
Detailed invoices or receipts should describe the brand or quality of an item or professional workmanship carried out to demonstrate quality. For items such as sofas, ovens, beds etc., this information should be kept and made readily available
Do any contractors’ reports and/or estimates, include what they are replacing and if the replacement is on a like for like basis, or if it is a repair, what the likely cause was (see example below)?
The check-in inventory should provide enough written and photographic evidence on the level of wear in existence before the tenant moved in. This wear will not be the tenant’s responsibility at the end of the tenancy
TIP: Anycontractor
employed to carry out the repair can help contribute towards any discussion
needed with the tenant by writing an explanation of what they found and what
the likely cause was.
Example: A fairly common claim is for a replacement bathroom
basin which has been cracked during the tenancy. It is not branded so there is
no clue as to its quality. While sanitary ware should last several years,
accidents happen and a tenant would be responsible for costs towards putting it
right. However, claiming for an expensive replacement may not succeed unless
you can prove it is the same quality as the damaged one. An element of the
normal use must also be considered when calculating any costs.
Who were your tenants?
Were they individual students, a professional couple or a family?
Allowing a pet into a property may affect the level of normal wear to a small extent, but anything more is likely to be damage and proportionate costs for putting things right may be justified
TIP: Understanding who your tenants are will help
manage expectations on how tenants should leave the property and what amounts
to ‘normal use’ for those living there.
Example: Crayon marks on walls are a classic example.
Tenants often think these should fall under fair wear and tear but they are
responsible for the damage and costs for putting them right. But remember these
must be proportionate to avoid betterment.
What is the life of the item or area?
How long an item should last is always subjective and subject to change
Remind yourself that the consistent approach taken by all adjudicators for décor and carpets starts at five years (in student properties it is closer to three years!) and this is where to start
The lifespan of other items will depend on various factors and be dealt with on a case-by-case basis
TIP: Good evidence can extend the life of an item. For example, a check-in inventory describing the carpet in ‘excellent condition’, with supporting photographs, and a purchase invoice dated four years ago would suggest the life expectancy is longer than five years.
Example: In a situation where something happened during the tenancy, such as a leak, a contractor’s report/invoice which explains the likelihood of the tenant being responsible for the initial problem, or whether it was due to normal wear, is a good start. Then, asking the question, did the tenant report the problem as soon as they noticed it or was it allowed to steadily get worse? This information will all be part of the calculation to work out the extent of the tenant’s responsibility towards putting things right.
How long was the tenancy?
Remember that the tenant is not responsible for the normal wear of any part of the property, while living there
In addition, and unless the item or area was ‘new’ at the start, you will need to add on the use in previous tenancies
TIP: Make sure the check-in inventory is detailed,
with a full description of the condition of items and areas in the property,
and dated. This information will be key when it comes to any discussion at the
end.
Example: A claim for the full cost of redecoration due
to excessive damage, which made no allowance for normal use of the property
during the two year tenancy. If the condition of the décor at check-in was
recorded as ‘scuffed, marked and with nail holes in places’ it would be
unsuccessful. However, a claim may succeed if the damage was due to the
tenant’s negligence and the proposed cost had considered that the property was
going to need redecoration within a year or so, using the life expectancy of
five years.
The key to success is having all this information at hand to build a good picture for both yourself and the tenant. Making sure to calculate costs which are reasonable and proportionate, and which a tenant can understand, will increase the chance of a successful discussion.
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