Fair wear and tear – what is it and how is it applied?

While there is no legal definition of the term itself, way back in the 1950s a famous judge, Lord Denning, said that a tenant “must take proper care of the place…” which any reasonable tenant would do, and not cause damage willfully or negligently.  However, 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 case 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.

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. Not simply from living in the property.

The big 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?

The simple fact is that everything will need to be replaced or renewed at some point in time.

Does fair wear and tear apply to cleanliness?

A very important rule 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, no matter if the tenancy lasted one year or six!

What is betterment?

You may have heard of the term betterment, which goes hand-in-hand with assessing fair wear and tear and appropriate cost.

Betterment is where compensation for damaged items would leave the landlord or property in a better position at the tenant’s expense. For example, replacing a five year old carpet with a brand new one.

Betterment applies to both ‘condition’ and ‘cleanliness’. A valid claim where fair wear and tear applies should only relate to the proportion of damage or deterioration over and above what is reasonable use, due to the tenant’s actions.

When assessing fair wear and tear, there are five areas we consider collectively, which I’ll explore below. Having all the information relating to these five areas to hand should lead to a productive and successful discussion with your tenant and a mutually acceptable settlement.

Top tip: This is a good time to remember the value of having a quality check-in inventory so that you have good evidence for any negotiation, if needed.

What factors affect fair wear and tear?

Age

Being able to show something’s age is the first step in calculating a reasonable settlement amount, when assessing the extent of a tenant’s responsibility – the older the item, the more wear and tear it is likely to have suffered. You should always consider this when managing your expectation of what a reasonable cost is.  Do you know the age of your fittings, furniture and décor, and have the invoices to back it up?

Is a cost being applied for an item which was brand new, or an area which was free of any damage and marks, when the tenancy began?  Or had it already seen several tenancies?

Top tip: Keep all the invoices when you carry out work or replace anything and make sure they are detailed; the date of supply and/or fit will prove the length of time since things were new.

Quality

Spending more money on quality items is something to consider very carefully for a rental property and, in terms of calculating fair wear and tear, is most relevant when claiming for replacement.

Quality sanitary ware may, for example, last a long time, but it doesn’t mean that lesser cheaper brands would not last the same amount of time. If a weight is dropped into a sink, it may crack whatever the quality.

The quality of an item is relevant in helping to negotiate a like for like replacement cost yet inventories rarely record the quality of items such as carpets, which cannot be seen in photographs, or sanitary ware. Was the carpet £7.99 or £16.99 a square metre when it was bought? Again, this means an invoice is invaluable when proposing costs for a similar item or quality of work needed. However, the check-in inventory may, at the very least, contain good quality photographs and detailed description to help with any discussions needed, for example the make of an appliance.

Top tip: Make sure your detailed invoices are all kept safe as you never know when you might need them for discussing costs on a like for like quality basis. 

Who is renting the property – who are your tenants? Are there any pets?

Are your tenants students, professionals, families? Are any children and/or pets living in the property? How many bedrooms are there and how many people are renting the property? These questions can all influence the level of fair wear and tear to be expected and may influence the lifespan of areas and items in a property.

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. Are the tenants, for example, a professional couple, a family of four with two young children and a dog, or is it a student house?

A landlord who manages their own expectations will appreciate that if the rental property has six bedrooms and the tenants are a family with three young children and a dog, it is likely to experience a higher level of wear and tear in all the common areas such as the living room, stairs, bathroom and kitchen.

If the evidence shows that there is actual damage or deterioration which is over and above what is reasonable, having considered the type of tenant living in the property, then the tenant may be responsible for costs to put right the ‘excessive’ portion.

Top tip: Appreciate who your tenants are and problems can be spotted early if you carry out mid-term inspections.        

What is the expected life of the item or area?

The life expectancy of an item, or area, can depend on its quality and the amount it’s used. This may be related to the number of hours in the day the property is occupied or the number of tenants in the property.

The quality of the décor and appliances, for example, can vary drastically. The consistent approach we take, on the life of décor and carpet in a rented property, is five years. Other items, such as appliances, work tops, sanitary ware etc. will all be assessed on a case-by-case basis.

When looking to calculate what proportion of a replacement or redecoration cost is reasonable to discuss with your tenant, you will need to consider the age and quality of the item, or area, to decide how many years it has already been used for. Remember, the tenant is not responsible for these years.

Top tip: Make sure any costs you are proposing do not amount to betterment, as with every tenancy there will have been some wear, no matter how small.

How long was the tenancy?

The last thing to ask yourself when considering fair wear and tear, and before calculating any costs and proposing them to your tenant is ‘how long has the tenant been living in the property’?

As already mentioned above, there will be more natural wear to the property the longer it has been lived in. Think about things such as how much more wear will a carpet or décor have had after one, two or three years, and what was the condition of it when the tenant moved in?

Top tip: the length of a tenancy is often a deciding factor when managing your own expectations on whether the item or area has little or no value left in it, because of its condition at the start and the length of the tenancy.

Summary

Breaking down any proposed costs for a tenant, by showing exactly what was considered and how the amount was calculated, using the criteria above, can help diffuse any potential conflict. The value of good quality check-in and check-out inspection reports, together with property visits carried out during the tenancy, plus written records of anything else that may help in any negotiation such as invoices and emails, will all help.

It is also worth remembering the importance of building a good relationship from the start of the tenancy. Landlords and tenants who do this and are reasonable when discussing and listening to each other’s points of view will often reach a mutual settlement, which allows everyone to move on. That is why less than three percent of all tenancies result in the need for an independent decision.

Offering tenants good advice right from the start, and managing everyone’s expectations throughout, together with having quality evidence will all help to avoid a formal dispute.

Checklist

Why is fair wear and tear so important?

Everyone needs to understand that this principle is here to stay, is implied into every tenancy agreement and must be considered when your tenant has moved out leaving damage or deterioration.