What is considered as "fair wear and tear"

[Reavna]

I've got a couple of queries on behalf of my brother and I wonder if anyone could clear it up for me please.

2 years ago my brother rented a house with his girlfriend and they've just bought their own house together so they moved out the middle of November.

The whole of the ground floor of the house is wooden floor boards that had been stained a very dark brown but had never had any sealant or anything put on it to protect it, so it scratched very easily, and due to the very dark colour of the boards the scratches showed up a lot. Most of the scratches to the floor are from when they moved in, shifting furniture, etc but to be honest, you only had to look at the floor and it scratched. There has only ever been the 2 of them living there, they've never had wild parties or anything like that, but the floor was covered in superficial scratches.

When they moved out they spoke to their letting agent about it who said they'd have a look at it and see what they thought. The letting agent was of the opinion at the time that it was fair wear and tear so contacted the landlady to authorise the release of their deposit. The landlady wasn't happy with the agent's say-so so visited the property herself and decided that she wasn't going to pay the deposit because of the state of the downstairs floors. My brother and his girlfriend went back to the property to try and repair the scratches. They touched up all the scratches with some touch up polish and the floor looked absolutely perfect. The agent was 100% happy and again contacted the landlady to say the scratches were gone and that he was going to release the deposit.

Again, the landlady wasn't happy and insisted on visiting the property and she's now saying that the floor isn't up to the standard it was when the property was let so she wants my brother to pay to have the floor re-sanded and stained. Obviously, my brother isn't best pleased and he's not up for paying £100s for what he considers wear and tear, and wouldn't have happened if the floor had been protected properly in the first place. I can't see that the floor now looks any different to when they moved in.

What grounds does he have on this? Can she make him pay? Can he get his deposit back?

Second query is, when he moved in, in the main bedroom was the most disgusting carpet you'd ever seen in your life. It was dirty, stained, ripped and torn. The landlady refused to have the carpet replaced so he paid to have a new carpet, underlay, gripper rods, etc fitted at his own expense. The old disgusting carpet was removed and disposed of around 2 years ago, but the landlady is demanding my brother replace the bedroom carpet exactly as it was when he moved in and is threatening to deduct money from his deposit if he doesn't. He can't replace it, it was taken to the tip 2 years ago. The old carpet was dirty and dangerous and the carpet he replaced it with is 100 times better than what was there when he moved in.
Can the landlady seriously demand the old carpet be put back? Seems monumentally silly to me. She's got a far better carpet free of charge so if anyone is claiming anything, it should be my brother claiming money back from her for the cost of the carpet.

Any ideas please? He's not getting any joy from the letting agent at the moment and as he's not sure of his full legal rights he doesn't want to go in there.

Thanks!

[Aequitas]

"Fair wear and tear" is explained here: http://www.arla.co.uk/download/deali...disps_dams.pdf

Some landlords believe that a tenant should give back a property exactly as it was at the beginning of the tenancy. Others take the view that a deposit is extra rent that can be claimed on the slightest pretext. I suspect your brother's landlord comes into the latter category and she needs to be resisted. Indeed, she needs to be resisted if she comes into the former category.

The state of the floor appears to come within fair wear and tear. Apart from anything else, to prove her claim, the landlord needs to provide evidence as to the state of the floor at the beginning of the tenancy and I suspect she is unable to do that.

Her position in respect of the bedroom carpet is clearly untenable. Say to her:

1. The old carpet has been thrown away and clearly cannot be put back.

2. Does she really want your brother to remove the new(ish) carpet and replace it with one that is in the same condition as the carpet that was taken out?

3. Does she really believe that a judge would support her demand?

Put all this in writing and say that if the deposit is not refunded in full within fourteen days an application will be made to the court.

[Reavna]

Thanks for your reply.

It would seem that the wooden floor should have come under wear and tear in the first place, especially as the floor wasn't sealed or protected in anyway. My brother has since touched up the scratches so he shouldn't have to pay for it to be re-sanded/stained.

As for the carpet, she does seem to be seriously demanding the old carpet be put back as stupid as it seems. He doesn't have the carpet any more so the argument is pointless, but she's threatening to retain his whole deposit.

Also, for some reason, I'm sure that things like ripped/damaged carpets are illegal in a rented house. Please correct me if I'm wrong, but I remember when I was looking for a rental house years ago, the agent showing me round said something about the landlord legally having to replace or repair a ripped landing carpet.

I've suggested he write a letter along the lines that as the wooden floor is subject to wear and tear and that its current condition is above and beyond what is required and that carpet in the main bedroom is in far better condition than the one that was there in the first place, if the full deposit is not returned within 14 days then legal proceedings will commence.

The rest of the house is in perfect condition, my brother and his girlfriend repainted everywhere before they left, they re-filled holes from picture hooks, etc, etc and that's already been signed off, it's just these 2 bits she's being difficult about.

Oh, and he does have photos of the state of the carpet upstairs when he moved in so he can prove that what is there now is a vast improvement

Thanks!

[Ed999]

Read this thread: http://www.consumeractiongroup.co.uk...eductions.html

It explains the tenant's rights in relation to "fair wear and tear". If the case is disputed, it is for the Court to decide what amounts to fair wear and tear on the facts of the particular case.


Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[Reavna]

Hi, thanks for your help!

I've heard from my brother this morning and she's still refusing to pay up.

He wrote to the landlady on Tuesday and enclosed photos of the bedroom carpet as it was when he moved in and a print out from the Arla Link pointing out that he had done everything he had to do and expected his full deposit to be returned within 14 days or legal proceedings would commence.

The letting agent also wrote to her clarifying things as to wear and tear, betterment, etc, etc.

My brother had a hysterical phone call from her this morning telling him she'd see him in court, she was going to make counter-claims against him, that he'd made her life hell, etc, etc but the long and short of it, she wasn't going to be returning his deposit.

The letting agent seems to be on my brother's side, but says his hands are tied as he can't return the deposit without her authorisation. I know nothing about any of this really, I don't know if he's just telling my brother what he wants to hear to keep him off his back.

Who would hold the deposit? The landlady or the agent? I'm presuming the agent as he's saying he needs authorisation.

It's over a thousand pounds that he needs now - he's just bought a house, Christmas is 4 days away.

I don't think his deposit would be covered by the scheme. He moved in in November 2005, renewed his lease in November 2006 and moved out in November 2007

Is Court his only option now?

Sorry, this is a bit 3rd party but he doesn't have internet access yet (another long story as BT have cocked that up) and neither of us have a clue about the rights and wrongs of it.

[Ed999]

The agent acts for the landlord, so he can't return the deposit unless the landlord authorises that.

It is common for agents to simply hand over the deposit to the landlord, but from what you say it appears that this particular agent has not done so. Is there some reason for that? Is it a point that is dealt with by the tenancy agreement for instance?

If the final occasion on which the tenancy was renewed was before April 2007, when the Tenancy Deposit Scheme began, then the deposit will not be covered by the scheme.

The alternative dispute resolution (ADR) procedure provided by the TDS scheme is therefore not available in this case, so the tenant must sue in court if he wishes to recover the deposit.

The thread I drew to your attention nevertheless still applies to this case, even though you cannot use the TDS scheme procedure.

That thread gives you a letter before action, and specimen particulars of claim for use in a court claim, and helpful links to the court documents that the tenant will need in order to sue.


Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.