Fair Wear and Tear: Explained

Posted by Accommodation on 20th July 2021 -

Fair wear and tear is not a new concept, but it can often be overlooked when landlords and agents look to claim costs from tenants for damages.

In a landmark case in the 1950s (Warren v Keen) a landlord sought to recover costs for a number of alleged defects he felt were the tenant’s responsibility. The presiding judge, Lord Denning, ruled for the tenant stating: ‘The tenant must take proper care of the place… he must do the little jobs about the place which a reasonable tenant would do. In addition, he must, of course, not damage the house, wilfully or negligently; and he must see his family and guests do not damage it: and if they do, he must repair it.’

Critically 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 example 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.

 

The difference between wear and tear and tenant damage

A very important rule is that fair wear and tear refers only 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 as it was at the beginning, no matter if the tenancy lasted six months or four years!

In essence, fair wear and tear is the deterioration of an item or area due to its age and that which would be reasonably expected over the course of a tenancy, that is not due to the tenant’s actions or omissions.

For example 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. The key 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? 

What to consider when calculating wear and tear
There are a number of factors that should be considered when assessing whether any costs should be proposed for damage at the end of the tenancy and calculating wear and tear. 

Who your tenants were and how many lived in the property
Different tenants will live differently in your property. Understanding the type of tenant you rent to will help you manage your own expectations on how they might leave the property at the end of the tenancy. If you have an HMO or rent to students for example, you might expect greater wear and tear of the property compared to renting to a professional couple. Consequently, you might consider harder wearing or more economical carpeting and furniture. If you allow tenants to have pets then you might consider hard flooring.

Whomever your tenants are, remember that avoidable damage such as a child’s scribbles on the wall or any ripped furniture, that were not there at the start, is damage and not wear and tear and will therefore be a cost that the tenant is responsible for.

Duration of tenancy and the age, expected life and quality of items and areas
It makes sense that the longer the tenancy the more natural wear and tear will occur and this should be factored into any calculations you make. Tenants are not responsible for normal wear and tear of any part of the property which was there before their tenancy started or during the time they lived there.

When assessing wear and tear, consider the age of the areas or items. What condition were they in to start with? Were they new at the start of the tenancy? The life expectancy of an area or item can vary greatly depending on its quality and the amount of use it gets. High traffic areas such as carpets between two well used rooms will deteriorate more quickly than carpeting in other areas.  Adjudicators take a consistent approach to the deterioration of décor and carpets for instance, allowing five years for their lifespan in a tenanted property, and just three years for student tenancies. The evidence will then show if the lifespan on that area or item can be adjusted.

Demonstrating the ‘quality’ of an item would need to be shown through records, such as an invoice or receipt, or a contractor’s report. Ideally this would be evidenced on the inventory at check-in before the tenant moves in. For most tenancies we do recommend removing any expensive furnishings or items that you are not willing to ‘risk’ being damaged.

Avoiding betterment and considering apportionment
As a landlord you are not legally entitled to have old items replaced with new ones at the tenant’s expense which would then leave you better off than you would have been had the damage not happened. This practice is called ‘betterment’.

Instead of benefitting from betterment the landlord must:

1. Take into account fair wear and tear
2. Carry out the most appropriate remedy, whether replacement or repair
3. Not end up financially nor materially better off having observed (1) and (2)

How to keep wear and tear to a minimum
Having thorough reports to rely on is vital when a landlord is looking to prove damage and recover costs. Any dispute, however straightforward, takes time, effort and possibly money, all of which are better spent on other things. So if you can keep wear and tear to a minimum there is less likelihood of this becoming damaged and spilling over into a dispute.

There are a few simple things landlords can do to minimise wear and tear:  

Communication
Maintaining good relations with your tenant from the start and giving them good guidance on how to look after the property can only be beneficial. Let them know what you expect of them during their tenancy and how best to contact you and report any issues at the time they notice them. Conducting mid-term inspections (i.e. every three or six months) can help you spot any issues as and when they arise. This will allow you to carry out any repairs promptly or give appropriate advice on problems such as condensation, without waiting until the end of the tenancy when problems may have got worse.

Breaking down any proposed costs for a tenant, by showing exactly what was considered and how the amount was calculated, can help diffuse any potential conflict.

Photo and video evidence
The value of good visual evidence accompanying quality check-in and check-out inspection reports and any property visits carried out during the tenancy, will all help in any negotiation.

Also think about other written records which may help, such as invoices and emails.

Photographs and video footage of damage such as burn marks, carpet stains, scratches or damage to woodwork and flooring or tears and rips in furniture can be very useful. Bear in mind the importance of digitally dating photographs to verify when they were taken, or providing an inventory where photographs are embedded.

Evidence which is clearly dated and/or signed by the tenant serves as a good negotiating tool at the end of the tenancy. What’s more, when the tenant is made aware of their responsibilities and the potential cost of not looking after the property they are more likely to keep it in good condition.