The importance of the defects list

After a few years of renting the tenant decides it’s time to move on. On the last day of the lease the tenant supervises the loading of the truck, sweeps the floor on the way out, returns all the keys and remotes, and waves a nostalgic goodbye to the property as the gates close behind them. All that’s left is to wait for the deposit to be returned. As the days pass the tenant becomes more anxious. Has the landlord forgotten? Or waiting to roll-over the deposit from the new tenant? Or, worse, has no intention of paying the deposit at all? After several polite then not-so-polite reminders the tenant receives a one-liner response from the landlord: the deposit is being retained to cover damages to the carpet. The tenant’s eyes widen. Seriously?

It is common knowledge that the landlord is entitled to use a tenant’s deposit to cover damages to the leased property during the tenancy. It’s also common knowledge that the landlord is responsible for fair wear and tear to the property. The first question is: what is the difference between damages and fair wear and tear? (See our blog “What’s fair in fair wear and tear?”) And the second question is “How do you prove what the tenant is liable for?”

This is where the all-important defects list comes in. You see, protecting your deposit at the end of the lease starts at the beginning of the lease. With your inspection and defects list. Read your Lease Agreement and you’ll see that it provides for the landlord and tenant to inspect the property and compile a defects list. At least, it should provide for this. If it doesn’t, you may want to consider reviewing your rental documents. The most important inspections happen twice during the lease period: at the beginning of the lease, and at the end. The prudent lessor would be well-advised to perform regular inspections throughout the lease as well.

At the beginning of the lease, make sure that you check every room and every fitting. Any and every defect should be listed, no matter how big or small. From cracked tiles to missing light fittings to stained carpets to broken locks to leaking toilets. Both landlord and tenant should keep a copy of this list. Generally speaking, the landlord is not required to repair or make good on every item on this list (unless the defect needs to be repaired to render the property habitable). It is merely a confirmation between the parties as to the condition of the property at the beginning of the lease. It’s also recommended that you take photos of all the defects listed on your defects list.

Come termination of the lease, it’s time for landlord and tenant to dust off the defects list, and use it to inspect the property. If the condition of the property at the end of the lease has deteriorated due to fair wear and tear, the landlord remains responsible for the deterioration. But if there are any damages to the property, caused during the tenant’s occupation (and as evidenced by the fact that the damages don’t appear on the defects list compiled at the beginning of the lease) then the tenant can be held liable for the repairs.

We return to our anxious tenant, who immediately contacts the landlord to ask about the damaged carpet. The question is: who is liable for the large tear that was evident in the carpet when the tenant moved out?

• Was this tear there at the beginning of the lease? If so, it should have been listed in the defects list, in which case the tenant cannot be held liable for it.
• Was the tear caused by years of wear in a carpet that was holding on by a literal thread that finally snapped? If so, the landlord would be liable for this wear and tear.
• Was it caused when the tenant pushed and carried their ridiculously heavy cabinet across the room, with the thin carpet being no match for the razor sharp edges on the base of the cabinet? In which case the tenant would be liable for the damages.
• Or did the tear miraculously appear sometime during the tenant’s occupation? No-one knows how it got there, but there’s general agreement that it wasn’t there at the beginning of the lease. The tenant would generally be liable for these damages, even if they have no idea when or how it happened and who caused it.

A tenant wanting to reduce the risk of receiving a bill for damages that they’re not responsible for should take the defects list seriously. And a landlord who is serious about claiming damages from their tenant fairly and with minimal dispute should take inspections seriously. A well-drafted Lease Agreement goes a long way in helping both landlord and tenant to understand their rights and obligations.

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.