Helpful Tips Suzy Hershman 10/05/2021

Wear and tear-is it fair?

Recently, NRLA deposit protection provider, mydeposits, 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 and videos at the end of the tenancy, especially when it comes to assessing what damage caused by the tenant is unreasonable and what might be considered ‘fair wear and tear’.

Wear and tear is a fairly simple principle but can cause landlords a great deal of trouble unless they understand how it differs from wilful or negligent damage caused by the tenant and what level of costs can be proposed at the end of the tenancy.

The House of Lords defines fair wear and tear as ‘reasonable use of the premises by the tenant and the ordinary operation of natural forces’. In the context of residential lettings this isn’t the most useful definition for landlords and agents, so the following guide will help shed some light on what fair wear and tear is and whether damage to the property falls under the umbrella of the term. 

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 damages

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 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.

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 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  damage 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.

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

Dispute example – Damages and fair wear and tear

The example below is taken from a mydeposits dispute case; it highlights the importance of communication, good reports with photographic evidence and record keeping in respect of damages and fair wear and tear.

Disputed amount: £642.96 for damage to three items/areas of a property

Landlord/agent claimed:

That during the tenancy:

  • a slightly marked coffee table was left with additional damage and needed repairing
  • the washing machine seal had deteriorated due to lack of cleaning and needed replacing
  • some kitchen worktops were damaged and needed replacing

Costs to carry out the necessary repairs and replacement were being claimed from the tenant.

Tenant responded:

Saying that:

  • there were already marks on the coffee table as listed in the check-in report
  • the washing machine should fall under landlord maintenance and the entire property was professionally cleaned on departure
  • the worktop already had burn marks, which weren’t noticed until a toaster was moved by them, but they didn’t think it worth mentioning. An additional accidental burn mark was accepted

Evidence provided:

  • The tenancy agreement, check-in and check-out reports, dated photos, quotes

Adjudicator’s decision:

  • The check-in report reported the coffee table in good condition noting some marks; with supporting photos. The check-out report and photos identified more damage. The adjudicator found the tenant responsible for a contribution towards the quoted repairs as the table had been returned in a worse condition in excess of wear and tear
  • The check-in report described the washing machine as ‘like new’. The check-out report noted heavy mould on the rubber seal. The adjudicator accepted the property had been professionally cleaned but this hadn’t removed the mould. The damage was beyond reasonable wear and tear so the tenant was found responsible for the cost of replacing the seal
  • The check-in report signed by the tenant said the worktop was in a good, unmarked condition. The checkout report recorded a large white ring mark and three other small burns. There was no evidence to support the tenant’s claim that the burn marks were already there and the landlord was awarded reasonable costs

Award:

To the landlord:

  • Coffee table: 60% of the repair cost after factoring in two years’ wear and tear and to avoid betterment for the landlord (£100.68)
  • Washing machine: 100% of the cost for the replacement seal, call out charge and labour (£135.70)
  • Worktop: 85% for the cost of replacing the damaged section of worktop, allowing for wear and tear and to avoid betterment (£275.00)

Learning points:

  • Tenants should be encouraged to report any damages they find as soon as practical, and put it in writing
  • Good invoices include a full breakdown of materials, labour and call out charges. This way fair wear and tear is applied to materials only
  • Allowance for fair wear and tear should be made, including the condition of items or areas at the start of the tenancy, to avoid putting the landlord in a better position than they would otherwise have been – known as betterment

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.

Suzy Hershman

Suzy Hershman Head of Dispute Resolution, mydeposits

Suzy Hershman has worked at mydeposits for over 12 years, embracing every opportunity to share her extensive experience and knowledge by building relationships, listening and asking questions to find out what people want and need from us, whilst educating best practice.

As a government-authorised scheme, mydeposits has protected deposits in England and Wales since 2007 and we are the only scheme which runs licensed schemes in Scotland, Northern Ireland and Jersey. With over 150,000 members, mydeposits is the preferred deposit protection scheme for landlords in England and Wales. We have combined our years of experience with invaluable member feedback, to create an insurance based scheme that legally allows you to keep control of the deposit and a custodial scheme, where you hand the deposit to us to safeguard for the length of the tenancy.

See all articles by Suzy Hershman