NRLA deposit protection provider, mydeposits, has previously shared two guides, one about property inventories and a follow up on the importance of photographic evidence. It’s vital that a landlord has a comprehensive inventory with supporting photographs or videos at both the start and end of the tenancy. These will show the extent of any deterioration and whether it is reasonable ‘wear and tear’ or beyond what is reasonable and amounts to damage. 

Wear and tear is an established principle, accepted by the majority, but some landlords are confused when it comes to understanding how it differs from wilful or negligent damage caused by the tenant and how to apply it when proposing costs at the end of the tenancy. 

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.   

This guide will help shed some light on what fair wear and tear is and whether the deterioration to the property is just reasonable wear and tear.   

This guide will cover: 

• What is considered ‘normal’ wear and tear in a rental property? 
• The difference between wear and tear and tenant damage 
• What to consider when calculating wear and tear 
• How to keep wear and tear to a minimum 
• A case study highlighting fair wear and tear and damage to carpets 

What is considered ‘normal’ wear and tear in a rental property? 

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 claimed 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 added ‘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 has been referred to over the years in many Court of Appeal cases 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 point to begin with 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 as it was at the beginning, whether the tenancy lasted six months or six years! 

Deterioration such as minor 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 from normal use and is ‘reasonable’?  Or is the level of deterioration ‘unreasonable’ when, having considered all the circumstances, it’s over and above what is normal use?   

What to consider when calculating wear and tear 

There are several factors to consider when assessing if any costs should be proposed for damage at the end of the tenancy and calculating reasonable 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.

Find out more about choosing the best flooring for your rental property in this mydeposits article.  

Whoever 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 the tenant will be responsible for the proportionate costs to put it right. 

The age and quality of items and areas, the expected life and length of tenancy

When assessing wear and tear, consider the age and quality of the areas or items.  

Demonstrating the ‘quality’ can only be done with records, such as an invoice or receipt, or a contractor’s report unless the model no. or brand name can clearly be seen. Ideally this would be evidenced on the inventory at check-in before the tenant moves in, but this does not often happen. 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 carpets 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 quality of the evidence will then show if the lifespan on that area or item should be adjusted. 

It makes sense that the longer the tenancy the more natural wear and tear will occur, and this should be considered when making any calculations. 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.  

For most tenancies, we 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 a higher specification or brand-new ones in the hope that you can apply the full cost to the tenant. This would then leave you better off than you would have been had the damage not happened, which is known as ‘betterment’. 

Instead of benefitting from betterment the landlord must: 

• Take into account fair wear and tear 
• Carry out the most appropriate remedy, whether replacement or repair 
• Not end up financially or materially better off having observed (1) and (2) 

How to keep wear and tear reasonable 

Having thorough check-in and check-out reports is a vital starting point when a landlord is looking at any tenant responsibility for costs as a result of deterioration. Any negotiation, however straightforward, takes time, effort and possibly money, all of which are better spent on other things. If you can keep wear and tear ‘reasonable’ there is less likelihood of this becoming damage and spilling over into a contentious discussion. 

There are a few simple things landlords can do to minimise any potential conflict at the end of the tenancy:    

Communication 

Maintaining a good relationship with your tenant from the start and giving them good advice 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 make sure they know to report any issues as soon as they notice them. Carrying our mid-term inspections (i.e. every three, four or six months) is a great way to keep in touch with your tenants and can highlight any issues that may be going on. This will also 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.  

Explaining exactly what was considered and how any amount was calculated, and showing a breakdown of any proposed costs to a tenant, can help diffuse any potential conflict.  

As well as the check-in and check-out reports, you may have other supporting evidence such as invoices or estimates and contractors’ reports, which should all contain breakdowns of the work needed, and can be discussed with the tenant along with emails. 

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 with any negotiation. 

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.  

For further information, please read our mydeposits guide ‘Using photographs and videos as dispute evidence’. 

Dispute example – Carpet replacement and fair wear and tear 

The example below is taken from a mydeposits dispute case; it highlights the importance of taking into account natural depreciation in the value of items after a long tenancy when proposing costs, and the average lifespan of items in relation to the number and age of the occupiers.  

What happened? 

The tenant said that the carpets were not new when they moved in, that there were already some stains on them and that some of the edges were frayed and coming away from the wall. After living in the property for five years, because the carpets were looking untidy the tenant asked the landlord if they could be replaced. The landlord agreed to replace the lounge carpet only. The tenant admitted to dropping the iron on the lounge carpet and said they were willing to pay something towards the costs being asked, but that the amount the landlord wanted to charge was unreasonably high. 

The agent responded, saying that it was noted in the check-out report that all the carpets had several marks and stains on them and that there was no way that the carpets could be used for future tenancies. The lounge carpet, which the landlord had replaced two years previously, was burnt in two places, so the landlord should be entitled to claim towards replacing that carpet, which the tenant admitted to damaging.  

Evidence provided 

The tenancy agreement, check-in report, checkout report, invoice and quote. 

Decision and why 

The adjudicator’s initial consideration was the condition of the carpets at the start of the tenancy and the length of time the tenant had been living there, which was four years. 

The check-in report recorded that the carpets downstairs were in generally good condition with some wear, and that there was fraying to the edges and tread wear on the walkways in the bedrooms. 

The checkout report said there were two large iron burn marks in the centre of the lounge carpet and that other carpets throughout the property were very worn and discoloured, with numerous stains and spot marks. 

The starting condition for the lounge carpet was considered irrelevant as it had been replaced by a new carpet halfway through the tenancy. The landlord provided an invoice to show that the carpet had been replaced two years before the tenant moved out. 
Since both the tenant and the check-out report confirmed the condition and burns in this area when the tenancy ended, the adjudicator found the tenant responsible for costs towards replacing the lounge carpet. The carpet was only two years old, and the burn marks were extensive enough to warrant replacement.  

The quote for all the carpets to be replaced was for £825.00. This included the lounge carpet (£325.00), stairs and hallway (£210.00) and two bedrooms (£290.00).  
 
After making an allowance for reasonable wear and tear over the two years the carpet had been used, the adjudicator awarded £195.00, which was 60% of the replacement cost. 

The adjudicator was unable to make any award for the other areas of carpet claimed for due to their worn condition at the start of the tenancy on top of four years of normal use by a family of four.  

The average lifespan of medium quality carpets in a rented property is around five years, which was the minimum amount of time that these carpets had been laid, so the adjudicator concluded that a large amount of natural depreciation had occurred and the carpets had exceeded their natural life, making them the landlord’s responsibility. 

Learning points 

It isn’t possible to avoid reasonable wear in a property and a landlord should expect to replace some items after a particularly long tenancy, as they will have naturally depreciated over time. For this reason it’s always important to consider the average lifespan of items in a rented property before deciding whether it is reasonable to make a claim. It’s also important to always take into account the number and age of the occupiers - for example whether there are young children - when thinking what allowance should be made for fair wear and tear. 

If you do decide to make a claim, it is also a good idea to break down the work needed in specific areas (in invoices, estimates etc) to avoid betterment and make sure you can negotiate well where you have a good claim. 

As this case highlights, when an item is replaced during or at the end of the tenancy a reasonable amount of wear must be taken into account before proposing any cost.

In summary 

Wear and tear is a topic that is open to interpretation and is decided on a case-by-case basis. By giving your tenants good advice, managing the relationship and everyone’s expectations throughout, and with good quality evidence, the likelihood of a formal dispute is reduced. Should things escalate, our tenancy deposit partner mydeposits operates a tried and tested dispute resolution process. Read more about them here.  

NRLA members get a 30% discount on the deposit protection fee when they protect a deposit with the mydeposits insurance-based scheme in England and Wales.