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For landlords and tenants alike, fair wear and tear is perhaps one of the most contentious and misunderstood areas of letting out a property. Underpinning the discord between parties are the raw feelings of what is considered ‘fair’ and ‘just’ when returning a property after a protracted tenancy.
As a landlord, is it not fair to ask that if someone borrows an item from you, they return it in the same condition? On the other hand, as a tenant, is it not fair to say that you have paid for the privilege to reside in a property for months – if not years – and part of the arrangement assumes that the property will be returned as if it were lived in? Unfortunately, it is the vast swathe of grey area between these seemingly similar points which can cause so much friction and cost either party hundreds, if not thousands, in withheld deposits or costs.
Understanding Landlord and Tenant Responsibilities
In most cases where a property is let out, tenants sign up to a written agreement which stipulates their responsibilities as a lessee and the landlords’ responsibilities as a lessor. Such contracts often specify a number of conditions and requirements, ranging from payment terms through to inhabitant restrictions. However, one of the most important aspects of any tenancy agreement focuses on which party is ultimately responsible for the condition of the property. Current legislation states that landlords are always responsible for providing and repairing:
- the property’s structure and exterior
- basins, sinks, baths and other sanitary fittings including pipes and drains
- heating and hot water
- gas appliances, pipes, flues and ventilation
- electrical wiring
- any damage they cause by attempting repairs
In return, tenants are expected to behave in a ‘tenant-like manner’. In 1953 Lord Denning elaborated on the obligations of tenants in the landmark case of Warren vs Keen. He stated:
“The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler; he must clean the chimneys when necessary and also the windows; he must mend the electric light when it fuses; he must unstop the sink when it is blocked by his waste. In short, he must do the little jobs around the place which a reasonable tenant would do. In addition, he must not, of course, damage the house wilfully or negligently… but apart from such things, 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.”
The Right Honourable, The Lord Denning OM PC DL
In essence, tenants are responsible for ensuring the ongoing daily care of a property. The common routine tasks of inhabiting a property, be they changing lightbulbs, cleaning windows or unblocking sinks, are all ones which a tenant would be expected to undertake themselves. Anything beyond this, such as repairing fixtures, fixing pipework or ensuring the general habitability of the property falls under the landlord’s remit. However, there is one caveat to this. Tenants are responsible for repairing damage which arises due to their own wilful or negligent behaviour. Rather intuitively, if a tenant were to smash a sink basin in a fit of rage, they would be liable for repairing the damage.
What is Fair Wear and Tear in a Rental Property?
One of the more challenging areas of Lord Denning’s ruling is the concept of fair wear and tear. That is, that tenants are not liable for the deterioration in the condition of fixtures and fittings over time, or damage caused by fair usage. On the face of it, it is a rather simple concept. Tenants are not expected to undertake the repair of damage which occurs outside of their own control. The problem is specifying what is deemed fair or unfair wear and tear, which can often be a more subjective concept – or at least it can feel so for both landlords and tenants alike. As such, the concept of fair wear and tear is one of the most commonly disputed areas at the end of a tenancy.
It is difficult to properly define fair wear and tear, but the House of Lords defines it as unavoidable deterioration caused by the ‘reasonable use of the premises by the tenant and the ordinary operation of natural forces.’ Again, what one person may consider reasonable could easily be considered unreasonable by another. However, landlords should bear in mind the following:
- How did the damage occur?
Damage which has occurred due to deliberate or evidently negligent behaviour is not considered fair wear and tear. This could be evidence of cigarettes being put out on couches, smashed windows or dogs scratching on doors.
- What was the condition of the property at the start of the tenancy?
Tenants are only expected to return the property in the condition it was let in, subject to fair wear and tear. As such, it is worth bearing in mind the condition of the property when it was originally let. If the property was already in a tired state of repair which aged items, tenants may have grounds to suggest that the damage occurred due to the natural aging of fixtures and fittings or previous disrepair.
- How long has the tenant occupied the property?
Fair wear and tear is linked to the passing of time. The longer the tenancy goes on, the greater the likelihood that items or fittings may be damaged through the general aging of time. For example, the décor in tenanted properties is only deemed to have a lifespan of 5 years, so it is fair to assume that a property would need to be repainted if it has been let out consistently for the past five years.
- How many occupants live in the property?
The more people there are living in the property the more that wear and tear will occur. As such landlords of large HMO properties are less likely to be able to reclaim damage than someone renting out to a single occupant. Equally, residents with young children or animals may naturally incur more wear and tear than a single occupant.
Case Studies Of Fair Wear and Tear in Rental Properties
Sometimes the best way to get to grips with a concept is to take a look at real world examples. The website www.mydeposits.co.uk has compiled a number of case studies which highlight deposit claims post tenancies. The examples below compile some of the best and most relevant examples to provide a condensed summary:
Carpet Stains
| Landlords Claim | Tenants Claim |
| The check-out report recorded the carpets as lightly soiled with numerous small marks and one large stain in the centre of the living room. | The carpets were not very clean when they moved in and there were lots of small marks throughout, so they should not be charged for this. |
| Evidence | Ruling |
| The check-in report was brief, in a tick box style ‘excellent, good, poor’ with minimal written description next to each item. It recorded the carpets as ‘good’ condition. Only a few photographs were included in the report showing an overview of each area. | The living room carpet, on balance, was found to have been returned cleaned to a worse standard, with a large stain not recorded or reported by the tenant, on check-in. With the lack of detail on the standard of cleanliness in the check-in report or any invoice to show that a professional clean was carried out before the tenancy start date, only a small amount could be awarded towards carpet cleaning. |
Broken Freezer Drawer
| Landlords Claim | Tenants Claim |
| One of the freezer drawers had a crack in one corner which was not highlighted on the initial inventory. | There was already a small crack in one of the freezer drawers which got worse with use over the two years they were living there. However, this is just normal wear and tear. |
| Evidence | Ruling |
| The check-in report was brief, in a tick box style ‘excellent, good, poor’ with minimal written description next to each item. The freezer was deemed in ‘good’ condition but with the notation ‘in used order’. | No award was made for the freezer drawer due to the lack of detail in the check-in report and photographs to see the exact condition of the drawers and whether a crack was already present |
Damaged Table
| Landlords Claim | Tenants Claim |
| The dining room table has several small scratch marks. | The dining room table was not new and already had lots of small marks and scratches on moving in. It is wooden and will naturally deteriorate from use. |
| Evidence | Ruling |
| The dining table was labelled as being in ‘good’ condition in the check in report. However, there was signs of ‘some wear’ noted. | The adjudicator made a small award for some scratches on the dining room table. The landlord’s claim was reduced considerably as it was recorded as having some wear in the check-in report and the accompanying photographs were too distant to show the extent of its use. |
Scuffs. Holes & Drawings On Walls
| Landlords Claim | Tenants Claim |
| The walls and woodwork were in an excellent condition at the start of the tenancy and are now covered in large marks, scuffs and drawings. There were also many holes which needed to be filled in the lounge where the tenant has removed their shelves. The damage evident was excessive, irrespective of young children being present. | The walls and woodwork already had many marks and scuffs visible when they moved in. Any additional marks should be considered fair wear and tear given that they lived in the property for over three and a half years. The landlord should expect more fair wear and tear when there are two young children living at the property. |
| Evidence | Ruling |
| The check-in report recorded the walls to the lounge and bedrooms to be in an excellent condition with very few minor scuffs. The hallway and stairway/landing were in a generally good condition, noting some scuffs to lower levels and minor grubby marks. The checkout report and dated photographs show that the walls in the lounge and bedrooms have several scuff/rub marks throughout, with some pencil drawings also visible on some of the bedroom walls and a total of twelve fixture holes present to the lounge wall. | The adjudicator deemed that the walls were returned in a worse condition, with some deterioration exceeding fair wear and tear. The average lifespan for décor in a rented property is thought to be five years, as the walls were not freshly redecorated pre-tenancy and the tenant inhabited the property for 3.5 years, the landlord would be expected to re-decorate at the end of the tenancy anyway. The tenant was responsible for the reasonable cost of filling the holes in the lounge as this work falls under ‘repairs’ and would not be needed following any length of tenancy, as part of general maintenance of the property. |
Unapproved Pet Damage To Carpet
| Landlords Claim | Tenants Claim |
| Mid-term inspections and feedback from third party contractors indicated evidence of a dog being present, despite the block of flats head lease forbidding pets. The check-out report highlighted evidence of pet smells and stains on the carpet. A third party contractor was unable to remove the smell and stains from the carpet, so a replacement is warranted. | The tenant claims to be dog sitting for a sick relative and that the pet was only present for two weeks. Equally, the carpets were not in good condition when they moved in and the property did not smell of dogs when they left. |
| Evidence | Ruling |
| The check-out report noted stains on all carpets and pet hairs, as well as a smell. One of the invoices provided was for carpet cleaning, attempting to get rid of the stains and smell, which was unsuccessful. The invoice included a report from the contractor that the likely cause was dog urine. | The adjudicator decided that the tenant was responsible for causing the damage and was therefore responsible for costs towards both cleaning and replacement, giving credit to the landlord for initially trying to minimise any cost to the tenant through cleaning and to the contractor for his expert opinion. |
Boiler Repair
| Landlords Claim | Tenants Claim |
| The tenant reported an issue with the boiler seven months into the tenancy. When an engineer attended, they highlighted that the boiler was burnt out due to an overload of electricity after the tenant used an extension lead. | The tenant admitted to using an extension lead for the boiler, which was occasionally used to power other appliances as well, but argued this should not have caused any issues. There must have already been a fault. The boiler was temperamental throughout the tenancy. |
| Evidence | Ruling |
| The tenant did not provide evidence to show they experienced boiler issues throughout the tenancy. The issue was raised seven months into the tenancy and the landlord sent an engineer out the next day. The engineer highlighted the cause of damage being the extension lead in the report. | Given the lack of evidence from the tenant that the boiler was temperamental prior to the repair and with the third party engineer’s statement in mind, the adjudicator awarded the full amount to the landlord. |
Damp & Mould
| Landlords Claim | Tenants Claim |
| The landlord was aware of mould in the property, but it had become significantly worse while the tenant lived there, so the landlord would like a contribution towards removing the mould and re-painting. They have no record of the tenant reporting the mould in the bedroom. This was only discovered at the pre-checkout inspection, when it was too late to sort the problem out before the tenancy ended. The decorator has said that the mould in the bedroom appears to have been caused by a lack of ventilation and not allowing airflow between items of furniture and the walls | The mould was in the bathroom when they moved in. This was reported to the agent and the tenant was told to keep wiping it down. However, the extractor fan in the bathroom did not work. |
| Evidence | Ruling |
| There was initial evidence of mould in the bathroom and of the extractor fan not working. There was no evidence of the tenant reporting further mould in the bedroom and the decorator’s report indicated that this was a result of the tenant’s own behaviour. | Due to the mould already being present in the bathroom and the lack of a mitigating ventilation fan, the landlord is unable to claim for repairs and repainting the bathroom. However, as the tenant did not report mould in the bedroom and given the decorator’s comments, the adjudicator agrees that the tenant is partly responsible and should pay 45% of the costs towards rectifying mould in the bedroom. |
Tenant Alterations To The Property
| Landlords Claim | Tenants Claim |
| The tenant received no permission to carry out any work other than decoration in neutral colours. They put up bedroom shelves which had to be removed and left holes in the wall. The tenant also removed the previous garden paving slabs and stairs without replacing them. They also installed splashback tiles in the kitchen, with the work being done to a poor standard and being detrimental to the property value. | Any changes made only improved the property and made the property more appealing to future tenants. There was no storage in the bedrooms, so the tenant built large shelving units on the walls which were left in place as they thought they were useful. There was no time to finish the garden patio as the tenant had to move out quickly, relocating for my new job, so they are willing to contribute towards finishing this project. There were no splashback tiles to prevent damage to the kitchen walls when cooking so the tenant bought and fixed tiles at their own expense, which the landlord should appreciate. |
| Evidence | Ruling |
| The walls were freshly decorated prior to the tenancy and the tenant admits to installing the shelves. The tenant asked for approval to make changes to the garden, but never received it from the landlord. Although the garden patio had cracked paving stones, the tenant had removed these without permission and not replaced them. The checkout report highlighted chips to the kitchen splashback and large gaps where grout was missing. | The landlord was awarded the full amount to repair the holes in the wall caused by the tenant. The tenant was also in breach of the tenancy agreement by removing the tiles. However, due to their poor condition in the first place the landlord was only awarded 60% of costs towards rectifying the issue. Due to the addition and poor condition of the splashbacks installed, the adjudicator awarded the full amount towards rectifying the kitchen splashback. |
Evidence Of Smoking
| Landlords Claim | Tenants Claim |
| Prior to the tenancy the property had been fully renovated throughout. However, upon checkout there was substantial evidence of the paintwork being heavily discoloured and a strong smell of smoke. | They only smoked in the property occasionally and the windows were always open during this time. The issues highlighted by the checkout clerk should be considered as fair wear and tear after living in the property for almost three years. |
| Evidence | Ruling |
| The landlord provided an invoice of the prior redecoration of the property and the check-in report highlighted the décor as being in excellent condition. | The adjudicator agreed that the deterioration exceeded fair wear and tear. As such, the landlord was allowed to retain part of the deposit to pay for repainting the rooms most affected. |
Lock Replacement Due To Missing Keys
| Landlords Claim | Tenants Claim |
| The tenant did not respond when contacted about returning the keys at the end of the tenancy. While the tenant has offered to now return these, the landlord had to change the locks when these were not returned. Costs have already been incurred which the tenant should be responsible for. | They did forget to return the keys when they left but can return these at any time to the landlord |
| Evidence | Ruling |
| The tenancy agreement and end of tenancy communication clearly highlighted that the tenant was to return the keys at the end of the tenancy. An invoice was provided for £90.00 to show the costs incurred for replacing the lock and keys. | The adjudicator found the landlord entitled to reasonable costs to change the lock for security purposes, as the end date of the tenancy had passed, and evidence of loss had been provided. |
