February 7, 2017

Fair wear and tear

WHAT IS YOUR TENANT LIABLE FOR WHEN VACATING YOUR PROPERTY?

Almie Fourie

For a long time, the most renowned dispute between a landlord and a tenant occurs at the point where a tenant vacates the leased property and a calculation of damages occasioned to the property whilst in the care of the tenant must be done.

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

It is important to note that even though there are various damages a landlord may hold a tenant liable for, there are certain items that will be damaged over time. Even with the perfect tenant who diligently maintains a leased property and ensures its upkeep, one must keep in mind that most things have a lifespan.

Fair wear and tear is commonly defined in law as “reasonable use of the premises by the tenant and the ordinary operation of natural forces”. This relates to the forces of time and day-to-day use, i.e., a door being exposed to sunlight and rain, or a carpet worn as a result of people walking on it.

Let’s take the example of a carpet; in the event that a landlord intends holding a tenant liable for a tear in a carpet, if the tear was caused as a result of normal day-to day-use, the tenant cannot be held liable for such damage however, should the tear be of such a nature that it is impossible for it to have been caused by normal day-to-day use, the tenant could be held liable, but only for a portion of the restoration charge. This is because the damage calculation must take into account the initial condition and age of the carpet at commencement of the lease as well as its life expectancy, meaning a landlord has to take into account the depreciation in the value of the carpet.

The general rule is that if an item that does not normally wear down is damaged, then the tenant will be liable for such damages and the landlord may deduct the costs for repairing or replacing such item (after having considered any depreciation of value) from the tenant’s deposit.

The general expectation of a landlord should be to receive the property at the end of a lease period in such a condition that allows the landlord to arrange for immediate occupation thereof without having to spend any money whatsoever on the “restoration” of the property unless the intended work is for an upgrade to the premises.

This begs the question, should it be expected from tenants to deliver a leased property to the landlord in mint condition i.e., brand new or unblemished taking into consideration fair wear and tear, or should the expectation be to deliver the property in a good and clean condition; undamaged to the extent that any person is capable of maintaining living space?

If you as a tenant or a landlord need guidance as to what constitutes fair wear and tear, contact our offices.

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