Disputes between landlords and tenants over property damage are on the rise, with the Tenancy Deposit Service (TDS) reporting that damage now accounts for 52% of all disagreements. So when is property damage really just fair wear and tear?
Imfuna Let claims that there is still much confusion between landlords and tenants over what constitutes acceptable damage, or fair wear and tear.
It is commonly believed in the lettings industry that a tenant cannot be held responsible for fair wear and tear at the end of a tenancy. This means that the tenant is not accountable for any damage incurred through the reasonable use of the property and the ordinary operation of natural forces.
However, the founder and CEO of Imfuna Let, Jax Kneppers, states that many letting agents and landlords still have unrealistic expectations on the deductions that can and cannot be made from tenant deposits.
He says: “Fair wear and tear is the most misunderstood area of the rental process. Landlords and letting agents may hold the view that a tenant is responsible for repainting the whole property at the end of their tenancy, but the law may not agree.
“A tenant, on the other hand, may believe that all the marks, pinholes and damage to the interior walls at the time of check-out will be covered by normal wear and tear. The same viewpoint is often applied when assessing damage and wear to the contents of the property and its fixtures and fittings.
“Landlords and agents have to make decisions regarding damage and normal fair wear and tear every time a tenant checks out of a property. They must have a clear idea about wear and tear and be able to justify their recommendations.”
He explains: “There are two key things to remember with wear and tear. Firstly, the tenant has a duty of care to return a property in the same condition at the end of the tenancy as it was found at the start and as listed on the initial inventory report – with allowance for fair wear and tear. Secondly, the law does not allow for betterment or new-for-old when assessing the action needed to be taken after a check-out inspection. If an item was old at check-in and after a two-year tenancy there is some additional damage, the law will not allow a landlord to simply replace this item with a new one. Instead, some sort of compensation is allowable towards future replacement.”
The Director of Balgores Property Group, Howard Lester, also comments: “Scuff marks that are generally below waist height in areas such as the hallway, stairs and high traffic areas would be considered wear and tear. Above this height in any area should be viewed as damage. Wear and tear does not allow for properties to be left dirty.
“Where damage occurs, landlords are entitled to receive compensation for the loss they suffer. Simply put, all items have a life expectancy and the amount of compensation will depend on the age of the item. This is the general rule of thumb and relies heavily on the quality of the inventory and check-out.”
He continues: “Landlords and agents should always encourage tenants to be present at any check-out inspection, and they should be made aware of all the issues that are raised in a check-out report. This includes cleaning, damage to items listed on the inventory and additional gardening or missing items. This discussion will inevitably include the subject of fair wear and tear.
“In the event of a dispute, the evidence is sent to a third party adjudicator, who will only look at paper evidence and make their decision based on what has been provided. In short, having no or poor inventory and check-out will normally lead to little or no compensation.”
Balgores Property Group has put together some advice for landlords to help avoid deposit disputes:
- Compile a detailed inventory – Always prepare a thorough inventory at the start of each tenancy. This will be used as a guide at the end of the tenancy.
- Conduct a final check-out, preferably with the tenant present – Offer your tenants the option to be present at the check-out inspection. The check-out report should be thorough and sufficiently detail any discrepancies or differences against the inventory. Additionally, take photographs where appropriate. The tenant should be asked to sign the report if they agree with it.
- Communicate with your tenants – All communications with the tenant should be prompt, regular and fair at the end of the tenancy. Remember to keep written copies of all communication.
- Keep all instructions from contractors – If your property requires work, keep all instructions from contractors along with their quotes/invoices. A detailed breakdown of the work that is required will help adjudicators assess and understand what portion of the work and costs can lawfully be allocated to the tenants.
- Forward the deposit onto the tenants as soon as possible – Once any proposed deductions have been formally raised with the tenant, forward on the undisputed amount to the relevant parties as soon as practically possibly.
- Return the deposit if there are no disputes – In cases where no disputes are raised, return the full deposit to the tenant within ten working days of the final check-out being completed.
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