When renting a property, there is almost always a check-in inventory inspection carried out which documents in great detail the contents and condition of the property. This is agreed by both the tenant and the landlord and this then forms the basis for the end of tenancy inspection where the property is re-inspected and compared to the condition at the beginning. In some cases, landlords will justifiably propose that deductions are made from the deposit that was paid at the beginning of the tenancy to pay for damage to the property. There is often confusion, though, as to what is damage and what is fair wear and tear. Damage can be claimed back by the landlord and fair wear and tear can’t. In this guide we will look at the meaning of general wear and tear, what would be considered wear and tear in rental properties. For completeness we will also look at betterment and apportionment.
What is the definition of Wear and Tear?
Before we get into the details, it is probably worth giving a definition of what wear and tear is. Unfortunately, there is no clear, specific legal definition as wear and tear is very subjective and needs to consider a number of factors. The house of Lords has defined fair wear and tear as being caused by “reasonable use of the premises by the tenant and the ordinary operation of natural forces”. At a generic level though, fair wear and tear can be considered to be: Damage caused to fixtures, fittings, furniture and flooring caused by reasonable use of the property by the tenants during the period of the tenancy. Let’s break this down a little.
- Reasonable use means that the tenants have to look after the property and not be negligent in their use of the property.
- When looking at the tenants, it would be reasonable to assume that a single person who is rarely at home would cause less wear and tear than a family of 4 with two dogs. This would need to be taken into account when looking at general wear and tear
- Duration of the tenancy needs to be factored in as the longer the tenancy, the more fixtures and fittings will deteriorate
- The condition and quality of the fixtures and fittings at the start of the tenancy also need to be factored in. If the carpet is say, a low grade carpet which is already starting to deteriorate it is reasonable to assume that it would degrade and show more signs of wear and tear than a brand new high quality carpet
So, when it comes to a wear and tear meaning, there is nothing definitive at all in law, which does make things a little more complex when it comes to the check out inspection.
What is classed as wear and tear on a rental property?
Wear and tear comes in a lot of different guises but the following are things that could be classed as wear and tear
- Wear to carpets and flooring. Now we do get asked “are floor scratches wear and tear?”. Again, it depends, but normal everyday scuffs and small scratches would be classed as wear and tear, but deep gouges or scratches caused by carelessly dragging something over the floor would not be classed as general wear and tear. The other question we get asked is around stains and marks on carpets. If these are part of normal, careful use, where people take their shoes off before going into carpeted areas, where possible, then, as long as the tenant cleans the carpet to the best of their ability when moving out, it would be classed as general wear and tear. If there are wine stains, burns and tears in the carpet, this would be considered damage beyond wear and tear.
- Scuff marks on walls where people or furniture has brushed against the wall would be classed as fair wear and tear, gouges are more likely to be classed as damage
- Scuff marks and wear on furniture or things like curtains would be wear and tear, but rips and tears would be considered damage
Can a landlord charge for wear and tear?
No, a landlord cannot charge for wear and tear as this is “damage” that is caused by reasonable and responsible use of the property. The Housing Act 2004 is very clear about this in schedule 10 section 4A which talks about deposit schemes giving the landlord the right to ask that a certain amount of the security deposit is returned to them rather than the tenant. Sub-paragraph 5 goes on to say:
The amount claimed must be referable to—
(a) an amount of unpaid rent or any other sum due under the terms of the tenancy; or
(b) a liability of the tenant to the landlord arising under or in connection with the tenancy in respect of—
(i) damage to the premises subject to the tenancy, or
(ii) loss of or damage to property on those premises,
other than damage caused by fair wear and tear.
So, it is clear that a landlord cannot ask for deductions to be made from a deposit for fair wear and tear to the premises.
Betterment and Apportionment
Even when damage caused is deemed to be more than just fair wear and tear, a landlord is not allowed to arbitrarily deduct money from the security deposit.
Betterment
A landlord is not entitled to betterment or in other words, is not allowed to be in a financially or materially better off position at the end of the tenancy when compared to the start when considering fair wear and tear. As such a landlord cannot charge a tenant the full cost of putting something back to exactly the same condition as it was at the start of the tenancy or replace an item with something that is of a higher quality than that being replaced. Let’s look at some examples of this:
- A tenant leaves a property relatively clean but forgets to clean the bathroom. The landlord cannot charge the tenant for a full property clean, but they can recover the costs to clean the bathroom
- Replacing an entire kitchen because of damage to one unit in the kitchen. All the landlord can charge the tenant for is the single unit that is damaged
- A landlord insisting that a carpet is professionally cleaned back to exactly the same condition as when the tenancy started or asking for a full clean of a carpet to remove a small stain
- A landlord wishing to replace a pine table with a solid oak table would not be reasonable. If the landlord did want an oak table, they could only charge the tenant for a pine equivalent.
Because a landlord is not entitled to have the property returned to exactly the same condition as it was when the tenant moved in due to fair wear and tear, arbitrators will use a process called apportionment to look at any damage and decide how much a tenant should pay.
Apportionment
Apportionment is where the cost associated with any damage is apportioned to the tenant based on several factors:
- Expected lifespan of the item. The deposit protection service has a handy table of average expected life spans for various items
- Cost of an equivalent or similar replacement.
- Age of the item to be replaced
- Residual lifespan of the item being replaced
Applying Apportionment
Let’s take an example of a carpet that needs replacing. The carpet is a medium to high quality with an expected lifespan of 10 years and is, at the time of replacement, 5 years old. The cost of a new carpet of a similar quality is £1,000.
The residual expected life of the carpet is 5 years (10yr life span – 5 years of use). The annual depreciation of the carpet is £100 per year (£1,000 divided by 10 year lifespan). So, the total depreciation of the carpet is £500 (5 years at £100 per year) and as such the residual value in the carpet is £500. This is the cost that can be attributed to the tenant for any replacement as they are not required to pay for the depreciated amount. This then takes into account fair wear and tear after 5 years.
Let’s now take an example where there is some damage but not extensive enough to warrant a full replacement. The landlord provides a bed with a slatted base. There are three broken slats on the bed, but they cannot be purchased individually. Even in this case, the landlord cannot claim for a full bead replacement and can only claim for the cost of the broken slats. Another example would be where there is a stain on the carpet, which is old. The landlord chooses to replace the carpet citing the stain as the reason, but it would cost around £50 to clean the stain. The landlord cannot charge the tenant for the replacement and can only apportion the costs of the cleaning, in this case £50 to the tenant.
General Fair Wear and Tear
Fair wear and tear is a very dynamic topic and also very much dependent on several factors. It is important that a full check in inventory is carried out and agreed and, where possible, the age of the items on the inventory is included. When checking out, reasonable and fair wear and tear needs to be considered and a landlord is not entitled to have the property put back to exactly the same condition as when the tenant moved in when taking into account fair wear and tear. It is important to note, here, that cleaning is a different matter and it is expected that the cleanliness of the property is the same as when the tenant moved in, so it is not acceptable to leave a property dirty simply because that is a consequence of living in it.
