There is no legal definition of fair wear and tear. It is subjective and depends on a number of factors.
Essentially, it is the amount of damage that can be reasonably expected in all the circumstances. You could define it as damage caused by ageing and normal use.
In the context of a residential letting, fair wear and tear means damage to carpets, decorations, fixtures, fittings and furniture ('3Fs') that would reasonable by expected during a tenancy:
for the particular period of time of the subject tenancy (known as the 'term')
to tenants like the type of tenants who do or did occupy
to 3Fs that were in the state of the subject 3Fs at the start of the tenancy
A landlord is entitled to possession of his property at the end of the term in the same condition as when he gave possession to his tenant, except that fair wear and tear is expected and must not be penalised.
Damage to the property, such as broken windows, is the responsibility of the tenant to make good.
If you want to claim for damage you will have to show that this is beyond fair wear and tear, so it is essential that you have a complete and accurate record of the state of the property and its contents before the start of tenancy. You should keep:
a full inventory, agreed with the tenant at the start of the tenancy
a photo library (preferably date-stamped) clearly showing the condition of the property
reports and statements from professional surveyors or specialist tradesmen, if you have any
A landlord should always be aware that he is not entitled to receive a property back, in the immaculate condition in which it was let to tenants.
So what exactly is fair wear and tear?
If certain items were worn at the start of the tenancy, but are now damaged, this may be fair wear and tear. For example: if carpets and curtains are threadbare, then normal use during the tenancy could cause them to be ripped. One way of avoiding grey areas is to ensure at the start of the tenancy that all aspects of the property are in a state that could not deteriorate further from normal wear and tear.
If the property was in a clean and tidy condition at the start of the tenancy, then you can expect to receive it back in a similar state. If it is dirty, you can retain a portion of the deposit consistent with the reasonable cost of having it cleaned. But note, you can only retain money to make the dirty areas clean, i.e. restore it to reasonable condition. If the kitchen is clean but the bathroom is not, it is reasonable to hold back money to have the bathroom cleaned but it wouldn't be reasonable to have the entire house cleaned. Make sure you keep cleaning receipts to prove that costs were incurred and reasonable.
As a side note, a landlord cannot expect to receive the property back in a better condition than that in which it was at the beginning of the tenancy. Clauses in the tenancy agreement that insist on professional cleaners, or on certain items (such as windows) being cleaned will be deemed unfair and void if the property was not of the same standard when the tenants moved in. Further information can be found in our guide to avoiding unfair terms in residential tenancy agreements.
The length of the tenancy
Wear and tear adds up over time; the longer the tenancy, the more wear and tear should be expected. If a tenancy is several years long, it is reasonable to expect worn areas of carpet and paintwork. You can get a handle on the rate of wear during periodic inspections - this will allow you to assess whether something is unreasonably damaged or has just worn out through fair use. Use a copy of an inventory to note wear and tear.
When you agree to take on particular tenants, you are accepting them as presented, and hence accepting the wear and tear consistent with that type of tenant. For example you should expect young families or house-sharing students to cause more wear and tear than an elderly couple.
First try to agree with your tenants on the amount to be deducted from the deposit. If the tenancy deposit protection schemes apply, inform the administrators of the scheme and the agreed amounts will be paid over within 10 days.
If you can't come to an agreement, you will need to refer the dispute for arbitration, again by informing the scheme administrators. You will then need to provide the arbitrators with all the necessary information they require to make a decision.
Your case will be much stronger if you provide the following:
- the tenancy agreement and the inventory
- a statement of your reasons for making the claim
- proof of the damage or missing items: images should be dated and include a scale (e.g. a ruler in a photograph)
- evidence that the sums you wish to deduct from the deposit are reasonable, for example work estimates, receipts for items, printouts of details and prices of similar items
- any other supporting evidence, for example statements from independent witnesses or suitably qualified professionals (e.g. a building surveyor)
Disputes for tenancies where the tenancy deposit protection schemes do not apply must be referred to the County Court.
We have a collection of articles about residential tenancy that cover a wide range of factors, both legal and practical.
If you need to update your tenancy agreement, look at our assured shorthold tenancy agreement templates.