What is wear and tear?
While a dwelling should be left clean and tidy when the tenant leaves the property, a landlord can not expect the dwelling to be returned in the same condition it was presented in at the beginning of the tenancy. The tenant should not do anything which causes damage to the property beyond normal wear and tear.
Scuffs and scrapes are unavoidable in daily life. It is subjective and can be difficult to identify what is normal wear and tear against excess wear and tear. The test is what is an “ordinary and reasonable” use of the dwelling taking all factors into consideration.
A landlord must take the following into consideration when determining what is considered reasonable wear and tear:
- the length of the tenancy,
- the number of occupants in the dwelling,
- whether or not there were children living in the dwelling,
- whether any deterioration to fixtures, furnishings, walls or floor coverings reflected "ordinary and reasonable use", and
- Other relevant matters include
- the condition and age of fixtures and furnishings at the commencement of the tenancy
- type of flooring (carpet, tiles, wood or laminate)
What damages are considered in excess of reasonable wear and tear?
Scuffs and scrapes are unavoidable in normal life. A dwelling with 5 occupants would be expected to show more signs of wear and tear when compared to a dwelling that is occupied by a single person. Dwellings require painting at reasonable intervals and furniture, fittings and appliances have an expected life span.
Damages which would be considered excess of reasonable wear and tear would likely include:
- holes in walls and doors,
- burn marks,
- excessive staining to carpets,
- missing fixtures,
- nicotine damage in the event that smoking was expressly prohibited,
- torn curtains, and
- broken glass in windows.
However, what is considered reasonable wear and tear after one month is clearly on a different scale to reasonable wear and tear after a tenancy of ten years' duration.
Withholding deposits due to wear and tear
Deductions may be made or a deposit may be retained in full if there has been damage above normal wear and tear to the property. However, the onus of proof will be on the landlord to justify why all of, or a portion of the security deposit, was retained to remedy damages in excess of reasonable wear and tear.
Pets in Private Rental Accommodation
A large number of tenants own pets. Landlords and tenants should discuss how pets can be best accommodated in a rental property before the tenancy commences and include any relevant terms in the tenancy agreement. These terms cannot reduce the obligations that landlords owe to tenants or impose any additional obligations on tenants that are inconsistent with the Residential Tenancies Act 2004 (as amended).
If a tenant’s pet causes damage to a rented property which is in excess of normal wear and tear, the tenant is responsible for this. The tenant must take reasonable steps to repair the damage or compensate the landlord for taking these steps. At the end of the tenancy, the landlord may be entitled to retain part or all of the deposit to cover damage caused by a pet which is beyond normal wear and tear.
Landlords must not use charges for pets to circumvent Rent Pressure Zone (RPZ) legislation. The Residential Tenancies Board (RTB) has powers to investigate and sanction this type of conduct.
More information on RPZ legislation can be found here.
If during the course of the tenancy, there is a disagreement in relation to pets, landlords and tenants should first discuss the issue and attempt to resolve it. If this is not successful the issue may be referred to the RTB’s Dispute Resolution service.
More information on the RTB’s Dispute Resolution service can be found here.
How to avoid disputes in relation to wear and wear?
In order 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, and both parties should sign and date this document and it should be attached to the lease agreement. If there is any previous damage to fixtures and fittings, it is worth noting these immediately. This will be useful in the event of a dispute in relation to wear and tear.
Landlords are entitled to inspect the dwelling at reasonable intervals during the tenancy. The RTB recommend an inspection is carried out every 3 months during a tenancy, It is also good practice to organise an inspection of the dwelling 3-4 weeks before the tenancy is due to end so that any damage in excess of reasonable wear and tear can be outlined and remedied by a tenant. It is also advisable for a landlord to take photographs of the damage and write to the tenant to request repairs are addressed within a reasonable time period. If a tenant fails to address the damage in excess of reasonable wear and tear, a landlord is entitled to retain all, or a portion, of the deposit to cover the reasonable cost of the repairs.
Disputes in relation to wear and tear
A reasonable and common sense approach should be taken by a landlord and tenant to avoid disputes about wear and tear.
If a dispute is referred to the RTB in relation to wear and tear the decision will be based on legislation and evidence. The RTB would recommend the following evidence be provided in advance of any hearing:
- photographic evidence (preferably before and after) of any alleged damage,
- purchase invoices to substantiate the age of the damaged items,
- dated invoices and quotations to substantiate the cost of repairs
The claim must be reasonable. It is important to remember that an adjudicator or Tribunal are unlikely to award the price of a new sofa when the one damaged was 9 years old and had seen considerable use. Similarly, when landlords fixing the damage also decide to improve the overall quality of the property or its contents, these extra costs cannot be passed onto the tenant.