Fair Wear & Tear
Tenancy Agreements always include a provision that the Tenant should take care of the Landlord’s property. The Tenant has an obligation to use the property “in a tenant-like manner”.
In 1954, Lord Denning described the obligation as follows: “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 that his family and guests do not damage it: and if they do, he must repair it.”
So acting in a "tenant-like manner" is essentially by treating the property as they would if it was their own, keeping to the tenancy agreement, paying rent and reporting any faults promptly.
There have always been limits on how far this obligation extends. The main limitation is that the tenant is not generally required to put right anything that has deteriorated simply through “fair wear and tear”.
In the 1958 the House of Lords explained that the words “fair wear and tear” meant that the tenant was not responsible for any damage caused by “the reasonable use of the property” or “the ordinary operation of natural forces”. This refers to the twin forces of time and normal daily habits. Walking across a carpet from door to dining table, for example, will exert a wearing effect during the length of a year that is perfectly natural. A Landlord cannot ask the tenant to pay for repairs or replacement at the end of the tenancy for changes caused by such fair wear and tear.
For the Inventory Clerk this is where, having decided on what has changed between the Check-In and the Check-Out, he/she has to make an assessment of what was down to Fair Wear and Tear and where the Tenant should legitimately pay for damage.
Assessing Fair Wear & Tear
A tenant has a duty of care to leave the property at the end of a tenancy in the same condition recorded on the Inventory, with Fair Wear and Tear taken into account. An adjudicator for the Deposit scheme uses experience and common sense to assess the many factors present before deciding what is attributable to fair wear and tear. Here are some of the things a clerk will consider:
The number and the type of occupants in the property.
The length of the tenancy.
The original age, quality and condition of any item at the Check-In.
The average lifespan of the item.
The reasonable expected usage of an item.
The condition at the Check-Out.
Any extenuating circumstances – e.g. damage caused by overflow in the bathroom in the upstairs flat; leak from the boiler and damp built as the boiler was not repaired on time.
Wear & Tear versus Dirtiness
What one person sees as acceptably clean may be considered to be well below standard by another. The important point to remember when it comes to assessing cleanliness is that agreement is reached at the Check-In. For instance, if a property was noted as “professionally cleaned” at the Check-In, the Tenant should have it professionally cleaned for the Check-Out. Or if a property was noted as “not been cleaned” or “in need of a full clean” at the Check-In and the Tenant was not happy about it and either the Agent or Landlord arranged for professional cleaning to be carried out after the Check-In, then the Tenant is required to ensure that the property is vacated in a professionally cleaned condition.
Dirtiness is never Wear and Tear. Even if the carpet is soiled due to Tenants walking on it, normal usage, this is never Wear and Tear and cleaning still has to be done prior to the Check-Out. Limescale built to bathroom fittings (e.g. taps, bath screen) is always a cleaning issue as it can be removed with de-scaling products available in most supermarkets.
If there is a dispute whether cleaning/repair is necessary versus complete replacement at the end of the tenancy, an adjudicator will examine the Check-in/out report, Statement of condition and any photos/videos in order to make an assessment of the condition of the property in relation to the original condition.
Specific Clauses of the Tenancy Agreement
The Tenancy Agreement may contain specific clauses relating to the required care and attention of particular items. Care of the garden represents a classic example of this.
In the majority of cases the garden will be treated as part of the rented property and as such, should be returned to the Landlord in the same condition as at the start of the tenancy regardless as to whether or not the tenants have chosen to take advantage of the garden facilities.
Betterment
The Law does not allow for Betterment, which means a Landlord is not entitled to charge his Tenants the full cost for having any part of his property, or any fixture or fitting “put back to the condition it was at the start of the tenancy.” This would constitute betterment.
The Landlord cannot expect to have old replaced with new at the Tenants expense, or indeed clean for that soiled at the start of the Tenancy. Or to have the property returned to him in the condition in which it was at the start of the tenancy, and the Tenant’s deposit should not be used to achieve this.
An allowance for Fair Wear and Tear must be made when considering compensation for damage.