Lessee shall maintain the interior of the dwelling and maintain the property in
a clean and tidy condition to the satisfaction of any local authority and
return the property on termination of the lease in good order and condition,
fair wear and tear excepted.”
The term “fair wear and tear” is commonly used in lease agreements.
It is in both the Landlord and the Tenant’s best interest to know and understand their rights and be aware of what “fair wear and tear” really means. To understand the meaning will also assist both parties to know under which conditions a tenant’s deposit can be used by the Landlord.
Fair wear and tear:
When the term is used in lease agreements, it refers to the damage that happens through ordinary day-to-day use of the property, for example the carpet worn from people walking on it. The term also covers damage due to exposure to natural elements such as sunlight, rain or movement in the ground. According to the Rental Housing Act, a landlord is free to claim compensation for damage to the leased property caused by the tenant, save for fair wear and tear.
It is advisable that any leased premises that is not newly build or recently renovated, and it is clear will have some level of deterioration of the condition of the property when leased will require both the landlord and the tenant to agree to the condition of the property at the time of concluding the lease. This will assist in providing a clear reference point from which future assessment of “fair wear and tear” can be done.
A general rule of thumb is that if damage is caused by a tenant to the property regarding something that does not normally wear out, or the tenant, due to their actions substantially shortened the lifespan or something (that does wear out), the tenant may be held responsible for the cost thereof by utilising the deposit or part thereof paid by the tenant. The landlord should always take into consideration how old the item was and how long it may have lasted if not for the action of the tenant including the cost of replacement.
In contrast to fair wear and tear, damage to the leased property is any deterioration caused by the negligent or accidental destruction and/or damage by the tenants.
Let us use the carpet example again. Normal wear and tear to carpets should not qualify as a reason to make use of the deposit or part thereof BUT if the carpets are badly stained and cannot be cleaned by professional cleaning or ripped due to heavy furniture moved around, it will and can be considered as damage. Any deduction made from the deposit by the landlord should be with the age of the carpets and expected time of use of those specific standard of carpets, taken into consideration.
Other examples also include nails hammered into walls to hang paintings or a wall being painted in a different colour, without obtaining prior consent from the landlord.
Remember that at the end of a lease period the tenant must hand over the leased premises in the same condition in which it was received, with the exception of “fair wear and tear”. The tenant is under no obligation to put the leased premises in a better overall condition than what is was on the date the tenant took occupation. It is therefore of the utmost importance to establish and agree at commencement of the lease, on the condition of the premises by performing of an in-going inspection with both parties present. This will definitely limit disputes between the parties either at the end of the agreement period or even throughout the time of occupation.
References / Sources
Rental Housing Act no50 of 1999
Sarkin v Koren 1949(3)SA 545 (C)