Over the years I have lived in numerous different houses, each time renting, and each time between one to two years. There has always been one main thing in common with these tenancies; every time the tenancy ends the landlord has made deductions from the deposit.
This seems to be a common problem for my friends and I, and I wish back then I had the knowledge I do now from doing the property litigation seat. What I have learnt in this seat would have been very useful for challenging my previous landlords.
One case I dealt with involved a dispute between a tenant and his landlord over deductions the landlord was claiming from the deposit at the end of the tenancy. The deductions included paying for damage to garden furniture that had been knocked over by wind. We were instructed to review the tenancy agreement and relevant legislation to advise if the deductions were lawful.
A tenant is normally responsible for keeping the fixtures and fittings in same condition throughout the tenancy, with the exception that tenants are not responsible for fair wear and tear.
Fair wear and tear – this is probably one of the most useful phrases for renters, and I am sure I will be using it when my current tenancy ends.
In this case, it came down to whether the damage could be said to be fair wear and tear.
So, what does this crucial phrase mean?
Fair wear and tear is generally taken to mean the damage that happens through:
- the ordinary day-to-day use of a property (for example, scuffs on walls and chipped paintwork)
- the ordinary operation of natural forces (for example, sun and rain)
I had to consider if damage caused by a storm could be described as fair wear and tear.
I advised the client that as the garden furniture was purchased and intended by the Landlord to be kept outside, it would be foreseeable that there may be ordinary weather which causes damage to the furniture. I said it could be argued that the wind would come under the ordinary operation of natural forces and the damage should be regarded as fair wear and tear. However, if the weather was unusually bad and the tenant had forewarning of this then it might not be considered the ordinary operation of natural forces and they might have been expected to move the furniture inside until the wind died down.
I advised the tenant that, as the storm was not unusually bad, the damage should be seen as fair wear and tear; the tenant was not responsible for paying for the damage and could challenge the deduction.
I will admit, when I got home that day I did go round the garden and make sure any furniture was safe from being knocked over by wind.