A tenant has an obligation not to do any act that would cause a deterioration in the condition the dwelling was in at the commencement of the tenancy. Normal wear and tear is disregarded in determining whether a tenant has complied with this obligation.
Normal wear and tear versus damage in excess of normal wear and tear:
This is often a subjective matter and it can be difficult to identify what constitutes normal wear and tear and damage in excess of normal wear and tear. Legal dictionaries indicate that normal wear and tear occurs where deterioration of the subject matter takes place over a period of time due to ordinary and reasonable use of the dwelling.
Relevant factors include (pursuant to section 16(f) of the Act);
(i) the time that has elapsed from the commencement of the tenancy;
(ii) the extent of occupation of the dwelling the landlord must have reasonably foreseen would occur since the commencement of the tenancy;
(iii) any other relevant matters.
While a dwelling should be left clean and tidy on its vacation, a landlord cannot expect the dwelling to be returned in the same condition that it was presented in at the commencement of the tenancy. A landlord must take into consideration the length of the tenancy, the number of occupants, whether or not there were children living in the dwelling and whether any deterioration to fixtures, furnishings, walls or floor coverings reflected “ordinary and reasonable use”. Other relevant matters would include the condition and age of fixtures and furnishings at the commencement of the tenancy as well as the type of flooring (carpet, tiles, wooden, laminate) provided. Scuffs and scrapes are unavoidable in normal family life. A dwelling occupied by a family of four would be expected to show signs of more wear and tear when compared to a dwelling occupied by a single person. Dwellings require painting at reasonable intervals and furniture, fittings and appliances have an expected life span.
Damage in excess of normal wear and tear would likely include holes in walls or doors, burn marks or excessive staining to carpets, missing fixtures, nicotine damage in the event that smoking was expressly prohibited in the lease agreement, torn curtains and broken glass in windows. However what is normal wear and tear after one month is clearly on a different scale to normal wear and tear after a tenancy of ten years’ duration.
The test therefore is whether the damage is “ordinary and reasonable” taking into consideration all relevant factors.
How to avoid disputes in relation to wear and tear:
Photographs and a detailed inventory list outlining the condition of fixtures and furnishings should be taken at the commencement of the tenancy. Both parties should sign and date this document and it should be attached to the lease agreement. If you have recently started a tenancy, you might consider taking digital photographs and emailing them to your Landlord in order to agree a record. If there is any previous damage that you notice, it is worth pointing this out to your landlord by email or in writing immediately.
Landlords are entitled to inspect the dwelling at reasonable intervals during the tenancy. It is good practice to organise an inspection of the dwelling three to four weeks before the tenancy is due to end so that any damage in excess of normal wear and tear can be outlined and rectified by a tenant. It is also advisable to take photographs and to write to a tenant to request that repairs are addressed within a reasonable period. If a tenant fails to address the damage in excess of normal wear and tear then a landlord is entitled to retain all of, or a portion of the security deposit to cover the reasonable cost of the repairs.
In the event that a dispute is referred to the RTB, photographic evidence (preferably before and after) of any alleged damage, purchase invoices to substantiate the age of the damaged items as well as dated invoices and quotations to substantiate the cost of repairs should be submitted by a landlord as evidence in advance of any hearing. The onus of proof will be on a landlord to justify why all of, or a portion of the security deposit was retained to remedy damage in excess of normal wear and tear. The claim will have to be reasonable: the RTB Adjudicator or Tribunal is unlikely to award the price of a brand new sofa when the one damaged was a number of years old and had seen considerable use. Similarly, when landlords repairing damage take the opportunity to improve the overall quality of the property or its contents, these extra costs cannot be passed onto the tenant. A reasonable and common sense approach should be adopted by both landlords and tenants to avoid disputes in relation to wear and tear. In the event that a dispute is referred to the RTB then the outcome of any decision will be based on the legislation and the evidence presented by the parties.