What’s “fair” in fair wear and tear?

Ask any tenant, “What’s the most stressful part of renting?” and they’ll tell you it’s waiting for their deposit to be repaid. The final box has been loaded, the lost back-door key has thankfully been found, the floor’s been swept, and all keys and remotes have been returned to the owner. All that’s left is for the landlord to refund the deposit. The tenant already emailed their bank details days earlier, in the vain hope that this would expedite the payment. And now we wait. And wait. And wait. The tenant sends friendly reminders, followed by a few not-so-friendly reminders, asking for their deposit to be returned. Eventually the landlord sends a curt response: the deposit is forfeited to cover the cost of replacing the carpeting. Sorry, whaaaat??

All landlords and tenants would have come across reference to “fair wear and tear” in their lease agreements. Generally speaking, the tenant is responsible for any damages caused to the property during their tenancy, “fair wear and tear excepted”. But what exactly does this mean? And what is the difference between “fair wear and tear” and “damages”?

“Fair wear and tear” refers to the gradual decline in the condition of the leased property which is caused by normal, everyday usage during the lease. As every property owner knows, all elements of a fixed structure slowly deteriorate over time. Everything from carpets to ceiling boards to roof tiles to plumbing is prone to deterioration due to weathering, usage, corrosion and time. This gradual, natural and expected deterioration is referred to as “fair wear and tear”. For which the landlord is responsible.

“Damages” refers to a form of destruction or deterioration that is caused by negligence or accident. This deterioration is more than just wear and tear. It’s abnormal damage or destruction caused to the property. Think of the 4-year old with a handful of markers drawing on the wall, the 12-year old cricketer hitting a six through the bedroom window, the 17-year old learner driver taking out the gate-post, the spouse’s gym workout ending with a falling dumbbell cracking the tiles. All of which the tenant is responsible for.

We return to our landlord who is withholding the tenant’s deposit to pay for the carpet to be replaced. This begs the question: why does the carpet need replacing.

• Is it because the carpet has become threadbare over the years? Or faded? Or pulling away from the skirting? Or worn in high foot-traffic areas? This would fall into the “fair wear and tear” category. Which means the landlord would be liable for the costs, not the tenant.
• Is it because the carpet is too last-season? Or the new tenant has asked for new carpets? Or the landlord has decided to lay tiles instead? If the landlord has chosen to replace the carpets for any reason unrelated to the tenant, the landlord will remain liable for the costs.
• Is it because the tenant’s child was left alone on the carpet with a pair of scissors and a permanent marker? Or the tenant’s cat was kept locked indoors without a litter box? Or the tenant periodically dropped cigarette stompies to smolder on the carpet? These instances would be considered as “damages”, meaning the tenant would be liable for the cost of replacing the carpeting, and the landlord would be entitled to set off this cost against the tenant’s deposit.

In short, on expiration of the lease the tenant is obliged to return the property to the landlord in the same condition as it was at the beginning of the lease – with the exception of fair wear and tear, for which the landlord is responsible. So how do tenants protect themselves against landlords who habitually blur the line between damages and fair wear and tear? To learn more, stay tuned for our forthcoming blog on “The importance of the defects list.”

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.