Understanding fair wear and tear

Damages to a property can often lead to disputes between landlords and tenants. Fortunately, the term “fair wear and tear” can assist as CILNA STEYN explains

One of the questions I receive very often is: “Are the tenants or landlord responsible for repairing (fill in the blank space)?”. There is no one set of rules in this regard. Yet, this question has a very simple answer. One I can answer in the form of another question: “Was the damage, breakage or fault caused as a result of fair wear and tear, or as a result of negligent or intentional harm by tenants?”

Fair wear and tear maintenance or repairs will always be the responsibility of the landlord, where damage cause by the tenant, even if it was accidentally, will be their responsibility to repair or fix.

So, for the tenant to repair and make good. This begs the question, what is fair wear and tear?

The term “fair wear and tear” regularly appears in lease agreements. It is typically used in the context of damages, where the tenant will be responsible for any damages to the premises, except for fair wear and tear. This leads to great disputes as there are many landlords and tenants who are unclear on what exactly this constitutes.

Fair wear and tear would be the expected damage to a property due to people simply living in the property without causing intentional or accidental damage, for example the damage or fading of paint. It is normal for a building’s interior and exterior to require a fresh coat of paint, typically every five to seven years.

This normal building maintenance and painting can’t be the tenant’s responsibility. For instance, a tenant might have occupied the premises for the full five years or only the last year. The tenant can’t be held responsible for this maintenance. This is simple fair wear and tear for which the landlord would be responsible.

Fair wear and tear can be defined as the natural deterioration of a building over time without any accidental or malicious damage – the latter of which would include, for instance, children drawing on the walls, items stuck to the wall with double-sided tape or glue, burns or stains to the carpets, or even damage to the garden by pets. Another example of fair wear and tear is walking (or rolling) over a carpet. Over time, it will be visible which areas are used frequently.

The exterior of a premises usually suffers normal fair wear and tear at a greater speed than the interior as the building is exposed to the elements, for instance the paint on the roof and the outside of the building – especially if the building is not face brick.

The maintenance of paint and regular repainting of the premises, repainting of the roof, repairs to the gutters and rust are defined as fair wear and tear and the responsibility of the landlord.

An easy test for fair wear and tear is asking yourself whether this would happen if you occupied the premises and took reasonable care; is this typically just damage to a property that will occur in time or was the tenant negligent in any way or caused intentional damage to the premises.

In a situation where the tenant makes use of a wheelchair or another device to manage a disability, the fair wear and tear may look different when compared to a premises occupied by a tenant without a disability.

Even in a situation where there is an increase to the damage to the premises, for instance skid marks or bumps to the door frames, this cannot be classified as anything other than wear and tear.

The Constitution of South Africa guards against discrimination. This means that a landlord may not decline a tenant because they use a wheelchair, for example.

With this in mind, it must then be accepted that the landlord reconciled himself with the fact that different damages can be expected. Should a tenant’s method of moving around cause damage to a premises that is similar to any other person using that assistive device, it must be classified as fair wear and tear.

All fair wear and tear repairs and maintenance will be the obligation of the landlord, on the other hand, breakage or replacement of short term consumables, like globes, fuses, swimming pool filter-sand and so on, will be for the account of the tenant.

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Cilna Steyn is the managing Director at SSLR Inc. Attorneys. She completed her LLB Degree at Unisa, after which she was admitted as an attorney in 2007.

She co-founded Steyn & Steyn Attorneys. She regularly presents training session, where she advises groups of rental agents and private landlords on matters relating to Landlord and Tenant Disputes and broader scope Property Law related matters.

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