Damage to fixtures or fittings and the fabric of the property
In considering any claim for damage and where liability is disputed, an adjudicator will compare the evidence as to the condition of the property at the start and end of a tenancy in order to establish if any damage has occurred during the course of the tenancy and if it is attributable to the tenant.
Comparing the Check-out conditions against the start of the tenancy
If damage has occurred, which is the responsibility of the tenant, then an adjudicator will then consider whether any repair or remedial works – or replacement of items – are required to return the property to the condition it was in at the start of the tenancy (allowing for fair wear and tear). If the Check-out evidence shows that an area is not in as good a condition as at the tenancy start, then a landlord or tenant may be entitled to make a claim against the tenant’s deposit.
If an adjudicator is satisfied that the landlord or agent is entitled to make a claim, an adjudicator will then consider whether the sum claimed by the agent or landlord is a reasonable cost incurred as a result of such breach.
When dealing with claims for replacement of damaged items that occurred during a tenant living in a rented property however, an adjudicator will adopt the most reasonable and practical and appropriate approach to assessing the remedy and will consider that the tenant’s deposit should not be used as an insurance policy where a landlord or agent may seek the full replacement value for damaged items.
Therefore, if the damage is proved or admitted, an adjudicator will make an award in respect of compensation for diminution in the inherent value of the item or the shortening of its lifespan (see my blog on useful average lifespans) and a landlord will not receive “new for old”.
Many landlords against tenant disputes, however, will turn on whether the damage was attributable to fair wear and tear. For example, if a Check-out report notes “scuff marks” to the decor of a hallway and even if the decor was in good or excellent condition at Check-in, an adjudicator may make a determination that given the length of the tenancy and the number and type of occupants in the property, that such “scuff marks” are attributable to fair wear and tear for which the tenant is not liable.
Conversely, for example, if a bedroom carpet was in good or excellent condition at the start of a tenancy and where the same carpet is shown to have been damaged by the tenant during the course of a short tenancy, an adjudicator may make an award based on evidence in the Check-out inventory.
Nevertheless, there are occasions when a tenant may have caused damage to a carpet but the damage does not warrant a complete replacement of a carpet. For example, a small burn mark. A landlord or agent may submit that such damage requires the whole carpet to be replaced and will claim the full cost of replacement against the tenant’s deposit. In law, however, a landlord or agent cannot, usually, claim the full cost of replacement and must allow for the useful lifespan of the carpet.
Furthermore – and importantly, if the damage can be repaired to a reasonable standard, a landlord or agent may have to accept the cost of repairing the carpet as opposed to replacement. An exception would be, however, where the property is a top end high-value property and where it may not be reasonable to rent out the property with a carpet showing remedial repair work as it would affect the character of the property.
In such a circumstance, an adjudicator may make a determination that repair would not be appropriate and may, instead, make an award for replacement having allowed for the lifespan of the item, the length of the tenancy, and fair wear and tear.
John Bolton, Adjudicator