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Everything you need to know about "fair wear and tear" on rented property

7 November 2019 10:30 AM
Tags:
rental agent
landlord
tenant
lease agreement
Marlon Shevelew
Property attorney
wear and tear
Property attorney Marlon Shevelew provides a comprehensive explanation of what constitutes “fair wear and tear” in lease agreements.

Also, listen to property attorney Marlon Shevelew on ConsumerTalk with Wendy Knowler:

A guide to “fair wear and tear” compiled by property attorney Marlon Shevelew. Visit his website for more.

SO, WHAT IS FAIR WEAR AND TEAR?

The phrase “fair wear and tear” refers to:

“dilapidation or depreciation which comes by reason of lapse of time, action of weather etc. and normal use.”

The House of Lords defines fair wear and tear as:

“Reasonable use of the premises by the Tenant and the ordinary operation of natural forces”.

Blacks Law Dictionary 5th edition states that “wear and tear mean deterioration or depreciation in the value of the subject matter by ordinary and reasonable use”.

In essence, and for our purposes (and there are a lot of definitions) when the term “fair wear and tear” is used in lease agreements, it refers to the damage that occurs through ordinary day-to-day use of the property.

For example: a carpet being worn from people walking on it.

The term also refers to wear and tear due to exposure to natural forces, such as sunlight and rain.

According to the Rental Housing Act, a landlord is free to claim compensation for damage to the property caused by the tenant, except for fair wear and tear.

To understand it better, a general rule of thumb is that, if a tenant has damaged something that does not normally wear out, or the tenant has substantially shortened the life of something that does wear out, the tenant may be charged the prorated cost of the item.

The landlord should take into account how old the item was and how long it may have lasted otherwise, as well as the cost of replacement.

For example: Ordinary wear and tear to carpets should not count against the tenant, however large rips or stains would be considered damage.

Any deduction from the tenant’s deposit should take into account the age of the carpets, compared with the expected total time of usage.

THE OUTGOING INSPECTION

If the tenant has damaged something that does not normally wear out or has substantially shortened the life of something that does wear out, the tenant may properly be charged:

1) the pro-rated cost of the item, taking into account how old the item was; 2) how long it might have lasted otherwise; and 3) the cost of replacement.

COSTS OF CLEANING

The reasonable costs of cleaning the rental unit, may be deducted from the tenant's deposit.

Reasonable cleaning costs would include the cost of such things as eliminating flea infestations left behind by the tenant's pets, oven cleaning, removing decals from walls, removing mildew in bathrooms, and defrosting the refrigerator.

A landlord may legally charge for any cleaning necessary to satisfy the "average" or "reasonable" incoming tenant.

Thus, in practical terms a landlord cannot, as a standard practice, automatically charge a former tenant for cleaning carpets, drapes or walls to a "squeaky clean" condition to prepare the unit for the next tenant.

A landlord may legally charge for any cleaning necessary to satisfy the "average" or "reasonable" incoming tenant.

Thus, in practical terms a landlord cannot, as a standard practice, automatically charge a former tenant for cleaning carpets, drapes or walls to a "squeaky clean" condition to prepare the unit for the next tenant.

Instead, a landlord must look at how well each particular tenant cleaned the rental unit, charging cleaning costs only if the rental unit (or a portion of it) was left in a clearly substandard condition.

Ordinary wear and tear to carpets or drapes does not justify a charge against the tenant's deposit. Such ordinary wear and tear would include simple wearing down of carpet or drapes because of normal use or aging and would include moderate dirt or spotting.

In contrast, large rips or indelible stains would justify a deduction from the tenant's deposit for replacing or repairing the carpet or drapes.

To be proper, the amount of the deduction should take into consideration the item's age compared to the expected time of use ("Life Expectancy").

FORMULA FROM CALIFORNIAN LAW- ADAPTED FOR OUR BENEFIT

CARPETS

For example, suppose a tenant has damaged beyond repair an eight-year-old carpet that had a life expectancy of 10 years and that a replacement carpet would cost R1,000.

The landlord could properly charge only R200 for the two years’ worth of life (use) that would have remained in the carpet had it not been damaged.

The math formula for determining the amount which should be deducted from the deposit is:

replacement cost (R1,000) divided by the normal life expectancy of the item (10 years) with the resulting figure (100) multiplied by the number of years of life (use) that otherwise would remain (2).

That is, (R1,000 divided by 10) x (2) equals R200.

FORMULA FROM CALIFORNIAN LAW- ADAPTED FOR OUR BENEFIT

REPAINTING OF WALLS

The following is one approach used successfully by a landlord when a tenant moves out and repainting is necessary:

Time in Unit Fraction of Costs to be Deducted
6 months - Full costs of labour & materials
6 months-1 year - Two-thirds
1year-2 years - One-third
2years or More - No Deduction

If the tenant lived in the rental unit for two years or more, the tenant would never be charged for any repainting costs. The general view is that paint has a life expectancy of three years and therefore one should not deduct for painting costs if the painting was three years old.

OTHER DAMAGE TO WALLS

Generally, minor marks or nicks to the wall are the landlord's responsibility as normal wear and tear. Therefore, the tenant should not be charged for such marks or nicks. However, a large number of holes in the wall and ceiling that require filling with plaster or otherwise patching and repainting could justify withholding money from the security deposit, depending upon whether the unit needed repainting anyway or had just been painted. Normally, large marks or paint gouges are the responsibility of the tenant.

A WORKING EXAMPLE:

Carpet is found to be damaged at the end of the lease and the landlord wishes to replace it.

QUESTIONS

1) How old is that carpet?
2) Do you have the receipt to assess the original cost per sqm.?
3) What is the quality of the carpet? R10.00 or R100.00 per sqm.?
4) Who are the tenants?
5) Should the landlord expect more or less fair wear and tear depending on the type and number of tenants?
6) What is the lifespan of the carpet?
7) How long was the tenancy and how many years left is there in the carpet?

COMMON EXAMPLES OF FAIR WEAR AND TEAR

  • Faded paint or wallpaper due to sunlight
  • Broken plumbing caused by normal use
  • Dirty blinds and curtains
  • Rug wear caused by normal use
  • A few small stains on the carpet
  • Furniture marks in carpet
  • Warped doors caused by age, temperature or moisture
  • Warped windows caused by the flow of the glass
  • Dents in walls from door handles
  • Broken appliances, if not from misuse
  • Dusting
  • Faded curtains
  • Broken lightbulbs
  • Replacement batteries for smoke detectors
  • A few small nail holes in the walls from hanging pictures
  • A small amount of mildew forming in grout lines in the shower tiles
  • Dirty grout
  • Tarnish on bathroom fixtures
  • Loose handles or doors on kitchen or bathroom cabinets

WHAT IS NOT FAIR WEAR AND TEAR?

  • Excessive holes in walls
  • Sticky cabinets and interiors
  • Broken tiles or fixtures in bathrooms
  • Clogged Drains and Toilets due to misuse – Pads, Nappies and Tampons
  • Broken walls
  • Removing paint, painted by the tenant
  • Tears, holes or burn marks on carpets, curtains or wooden floors
  • Animal stains in the carpet caused by domestic animals or leaking fish tanks
  • Broken windows and window screens
  • Broken doors and locks
  • Broken appliances due to negligence
  • Excessive filth in over or on stove by burners
  • Broken or missing window blinds
  • Flea and pest extermination
  • Excessive mildew and mold in bathroom
  • Excessively filthy bathtub, shower, sink, mirrors or toilet
  • Missing outlet covers
  • Missing or damaged smoke or carbon monoxide detectors
  • Cracked kitchen or bathroom countertop
  • Broken bathroom vanity

KEY CONSIDERATIONS FOR FAIR WEAR AND TEAR

AGE

Was the carpet new or the walls painted at the start of the lease or how long since the property was painted or had new carpets? Proof of this is important.

QUALITY AND EXPECTED LIFESPAN OF DECOR, FIXTURES AND FITTINGS

As per the above example.

NUMBER AND TYPE OF OCCUPIERS

The number of tenants, adults or children and number of rooms in the property no doubt will increase the wear and tear.

LENGTH OF TENANCY

The longer the lease, the more potential there is for fair wear and tear.
Simply put since there are no decisive facts, these evidentiary points will be of value .

PREVENTION

Tell your tenants how to look after the property.

Interim inspections can help you identify any issues as and when they arise allowing you to carry out remedial works promptly or give appropriate advice on such problems without waiting until the end of the lease when problems may have got worse.

After all, the outgoing inspection is not the time when remedial work can be undertaken.

THANK YOU

The content of these notes, except for information belonging to other authors, of which there is many, is subject to copyright protection. Reproduction of the content, or any part of it, is prohibited without prior consent from Attorney Marlon Shevelew of Marlon Shevelew and Associates Inc. Such content is intended to provide general guidance only and should not be regarded as legal advice. Professional advice should be sought before any actions are taken based on such content. Accordingly, any liability that would or could arise as a result of the content of these notes is hereby excluded to the fullest extent allowed by law.

Image: Pexels.

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7 November 2019 10:30 AM
Tags:
rental agent
landlord
tenant
lease agreement
Marlon Shevelew
Property attorney
wear and tear

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