Landlords, you many NOT charge your tenant for fair wear and tear
The question of damages to a rental unit is one of the most contentious, with one side claiming it is damage, and the other saying it constitutes fair wear and tear and should, therefore, not be deducted from the tenant’s deposit.
Top rental attorney, Marlon Shevelew, of Marlon Shevelew and Associates, provides the following definitions on what fair wear and tear is, as well as whose responsibility it is to cover the costs for repair or replacement.
Radloff v Kaplan 1914 EDL 357 361 “Dilapidation or depreciation which comes by reason of lapse of time, action of weather etc and normal use … but, if the person who is under the duty to repair lets time run on unduly without doing anything towards the upkeep and keeping in order of the place, he cannot rely on the exception of wear and tear. His use then becomes unreasonable”
Sarkin v Kren 1948 (4) SA 438 (C) “The ravages of time, age, exposure to the natural elements, including climatic conditions.”
The House of Lords defines fair wear and tear as “Reasonable use of the premises by the tenant and the ordinary operation of natural forces”.
Blacks Law Dictionary 5th edition states that “wear and tear means deterioration or depreciation in the value of the subject matter by ordinary and reasonable use”.
- Cracked window panes due to old warped frames
- Paint scratched or chipped
- Paint fading and discolouring over time
- Plaster or brickwork cracks as building settles
- Cracked floor or wall tiles resulting from structural movement
- Wall linings punctured by fixing devices for pictures, shelving, curtains, door stops etc
- Worn carpets from day-to-day use
- Kitchen counters marked or scratched by kitchen implements
- Walls accidentally marked by random contact or sunlight
- Garden mulch breaking down over time
- Door or window glass or frame cracked from being carelessly slammed
- Paint discolouring through regular candle smoke
- Linings or trim damaged by hammer, screwdriver or rough use
Minor damage that worsened over time because it was not reported to the landlord for repair
- Tenant’s dog digging up garden mulch
- Plaster chipped by nails being hammered in
- Scratches on kitchen bench tops due to cutting food on the surface
These are reasonable costs of cleaning the rental unit that may be deducted from the tenant’s deposit
- Eliminating flea infestations left behind by the tenant’s pets
- Removing decals from walls
- Removing mildew in bathrooms
- Defrosting the refrigerator
A landlord may legally charge for any cleaning necessary to satisfy the “average” or “reasonable” incoming tenant. Thus, a landlord cannot, as a standard practice, automatically charge a former tenant for cleaning carpets, drapes or walls to a “squeaky clean” condition to prepare the unit for the next tenant. Instead, a landlord must look at how well each particular tenant cleaned the rental unit, charging cleaning costs only if the rental unit (or a portion of it) was left in a clearly substandard condition.
Ordinary wear and tear to carpets or drapes does not justify a charge against the tenant’s deposit. Such ordinary wear and tear would include simple wearing down of carpet or drapes because of normal use, or ageing and would include moderate dirt or spotting. In contrast, large rips or indelible stains would justify a deduction from the tenant’s deposit for replacing or repairing the carpet or drapes. To be proper, the amount of the deduction should take into consideration the item’s age compared to the expected time of use.
A tenant has damaged beyond repair an eight-year-old carpet that had a life expectancy of 10 years and that a replacement carpet would cost R1,000. The landlord could properly charge only R200 for the two years’ worth of life (use) that would have remained in the carpet had it not been damaged.
And the formula is
Replacement cost (R1,000) divided by the normal life expectancy of the item (10 years) with the resulting figure (100) multiplied by the number of years of life (use) that otherwise would remain (2).
That is, (R1,000 divided by 10) x (2) equals R200.
The following is one approach used successfully when a tenant moves out and repainting is necessary: Time in unit / fraction of costs to be deducted
- 6 months – Full costs of labour & materials
- 6 months to 1 year – Two-thirds
- 1 year to 2 years – One-third
- 2 years or more – No deduction
The reason why no deduction would be allowed after two years is because paint has a life expectancy of three years, and it would be “fair wear and tear” if the painting was three years old.
Generally, minor marks or nicks to the wall are the landlord’s responsibility as fair wear and tear. Therefore, the tenant should not be charged for such marks or nicks.
However, a large number of holes in the wall and ceiling that require filling with plaster or otherwise patching and repainting could justify withholding money from the deposit, depending upon whether the unit needed repainting anyway or had just been painted. Normally, large marks or paint gouges are the responsibility of the tenant.
The general rule is: 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 properly 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.