What is meant by ‘fair wear and tear’ in a rental property lease and how should it be handled?
When your rental lease comes to an end and the property is handed back to your landlord, it should be in the same condition as it was when you moved in – except for fair wear and tear.
‘Fair wear and tear’ refers to the deterioration in the condition of the leased premises, caused by normal, everyday usage during the period of the lease. Wear that is caused by natural elements would also be considered as ‘fair wear and tear’.
The term – taken from the case of Radloff v Kaplan 1914 EDL 357 – refers to the ‘dilapidation or depreciation which comes by reason of lapse of time, action of the weather, etc., and normal [use]’. This phrase is still considered the authoritative definition of ‘fair wear and tear’.
In contrast, damage is any deterioration in the leased premises outside the accepted norm. Damage can also be defined as negligent or accidental destruction and/or damage to the leased premises.
Examples could include:
Permanent carpet stains that even professional cleaning cannot remove.
Nails or picture hooks hammered into walls for hanging pictures or mirrors.
Painting the walls a different colour without the landlord’s consent.
In the case of any damages, you will be required to return the leased premises to the original state. You can either make the repairs yourself or forfeit a portion of your rental deposit to defray the landlord’s expenses.
It is important to note that you cannot be held liable for any damage caused to the property before the start of your lease. For example, if there were nails in the wall when you moved in, your landlord may not deduct anything from the deposit to have them removed.
The rental lease must clearly state what the landlord is responsible for as well as the tenants’ responsibility in maintaining the property in good order.
According to the Rental Housing Act, a “landlord must let a dwelling which at the commencement of the lease is in a condition reasonably fit for the purpose for which it is let, and keep and maintain the dwelling in compliance with all the ordinances, health or safety regulations or any other law”.
This means that landlords must make sure that the property is safe to occupy, is clean and neat, and things such as stoves, geysers, lights, and taps are in working order.
Landlords are responsible for fixing any problems related to fair wear and tear so that the tenant has the use of the item. Good examples are geysers, door handles and locks, gate motors, and swimming pool pumps. Also, the repair or replacement of such items needs to be attended to without undue delay.
Tenants need to understand that the landlord’s responsibility is to hand over the property in a habitable condition – not to upgrade the property to luxury level.
If wear and tear on carpets, for example, cause them to become frayed or start tearing, the landlord is obliged to replace the carpets.
Tenants are not obliged to repair structural defects or to put the leased premises in a better overall condition than it was on the date when they took occupation. However, steam cleaning carpets because of dirt build-up is the responsibility of the tenants.
Any leased property – unless it is brand new or has been recently refurbished – is bound to have some wear and tear. This is why it is so important for landlords and tenants to agree at the start of a lease on the existing state of the leased premises.
To provide a reference point from which future ‘fair wear and tear’ may be assessed, an incoming inspection must be carried out before tenants take occupation. The landlord – or the appointed rental agent – and the tenants must all be present during the inspection. All parties should sign the inspection report, which should be supported with photos of the premises to highlight any possible issues. These could include marks on walls and floors, broken light fittings, and missing door handles.
At the end of the lease period, all parties should again be present during the outgoing inspection. A comparison of the incoming and outgoing inspection report will provide a clear picture of the state of the premises at the start and again at the end of the lease period. This should help avoid any disagreements on whether or not the premises have been damaged by tenants during their occupancy.
To avoid ‘fair wear and tear’ becoming an issue between landlords and tenants, a properly worded lease agreement as well as incoming and outgoing inspections are essential elements in the rental process.