WHAT CONSTITUTES FAIR WEAR & TEAR IN RENTED PROPERTY?

The question of fair wear and tear on a rental property and what damages a landlord can deduct from a tenant’s deposit…. one could write reams on this topic – the subject I’m sure of many a heated debate between landlord and tenant.

Basically fair wear and tear is seen as damage or loss to an item at the property which happens as a result of ordinary use and exposure over time.

So what damages can a Landlord charge for?
As to what damages a landlord can deduct from a tenant’s deposit, the terms of the individual lease agreement and the landlords rights in terms of the Rental Housing Act i.e. to claim compensation for damage to the property caused by the tenant, save for fair wear and tear, have a direct bearing on that.

I recently read a very clear article on this subject of fair wear and tear on rented property written by Marlon Shevelew, a Cape Town rental property attorney at Marlon Shevelew and Associates, who advises:

The general rule is that 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 be charged the pro-rated cost of the item, taking into account how old the item was, how long it might have lasted otherwise and the cost of replacement.

He goes on to give excellent guidelines which you can read in this link to the article – Tenant’s deposit and property repairs.

So when determining how much a Landlord can deduct from a tenant’s deposit for actual damage by the tenant (not wear and tear) it’s important to remember that the original condition and age of the item at commencement of the lease agreement need to be taken into account, and therefore cost of depreciation of the item due to normal wear.  i.e. if at the end of a tenancy it’s found that there is a tear in a carpet, the tenant can’t be liable for cost of a brand new carpet – depreciation has to be factored in.

Paint fades, doors and walls get scuffed with use, and everything wears or breaks over time, even with a tenant who really cares for the property, and one can’t hold a tenant liable for this.

On the subject of paint – if a tenant drives nails into the walls (only with landlord’s permission in our lease agreement) they would have to make good when they leave by removing nails and painting – and unfortunately, unless you have exactly the same tin that was used originally, it’s unlikely the paint dye lot is not going to be same in a new tin, therefore the entire wall (or room) will have to be painted.  If the tenant merely painted over the filled holes and the paint didn’t match, this could be constituted as damages, recoverable by the landlord.

When it comes to the argument of wear and tear carpets are sometimes a thorny issue between the parties  The problem with carpeting, as we have been advised, is that when new they have protection shield, a ‘scotchguard’ effect but after they’ve been cleaned they lose that protection and everyday wear ‘stains’ that much easier and doesn’t come out easily, and over time not at all.  This is reasonable fair wear and tear.

It’s interesting too for tenants to note that as well as the obvious damage by accidents etc., damage can include extensive build-up of dirt, and mould (on ceilings, in bathrooms).