What is Wear and Tear? Are Landlords or Tenants Liable For It?
At the end of a tenancy, the tenant generally tries to return the rented property to the landlord close to its pre-tenancy condition as it is possible that the property has experienced some wear and tear.
However, disputes may occur as to when wear and tear can be considered “reasonable” or “fair”, as well as who is responsible for fixing such wear and tear.
This article will help landlords in Singapore understand what “fair wear and tear” is, and whether the landlord or the tenant should be liable for wear and tear caused to the rented property.
It will cover:
- What is wear and tear and who is liable for it?
- Wear and tear in commercial or retail properties
- Must the landlord or tenant fix the damage to property?
- Can landlords deduct funds from the tenant’s security deposit to repair property damage that is beyond fair wear and tear?
- Can the landlord take legal action against the tenant if the security deposit does not cover the damage caused beyond fair wear and tear?
- What else is the tenant responsible for when moving out?
- Tips to prevent landlord-tenant disputes on wear and tear and property damage
What is Wear and Tear and Who is Liable for it?
Fair wear and tear
Fair wear and tear is damage to the property caused by normal ageing and generally includes reasonable and ordinary use of the premises by the tenant.
Reasonable and ordinary use would mean the deterioration in the condition of the premises and its fixtures and appliances from normal usage of them. For example, frequent usage of an oven in the premises over an extended period of time may cause the condition of the oven to naturally worsen. This is different from abusing the oven (such as hitting it repeatedly and for no reason) such that it is no longer functioning.
Other examples of fair wear and tear include minor scratches on wood floors, wear spots on carpets, and light damage that occurs over time and does not affect the usage of appliances.
When deciding whether damage to the premises can be considered fair wear and tear, the age or condition of the property prior to the tenancy, and the expected wear and tear or average useful life in certain fixtures and appliances over time, must also be taken into account.
In most tenancy agreements, there is a reasonable or “fair wear and tear” clause which imposes upon the tenant an obligation to keep the premises in “good and tenantable repair and condition” throughout the term of the tenancy. This generally means that the tenant should keep the premises in good order and condition, and return the rented property to the landlord at the end of the tenancy in a condition comparable to its pre-tenancy state.
This “fair wear and tear” clause is often followed by a caveat that says “fair wear and tear and acts beyond the control of Tenant excepted”, which aims to limit the tenant’s liability to reimbursing the landlord only for damage beyond reasonable usage or normal ageing of the property, i.e. beyond fair wear and tear. This means that the tenant is not liable for any damage caused to the property that falls under fair wear and tear.
If the damage to the property or change in condition of the premises is beyond fair wear and tear, the landlord may hold the tenant liable by retaining the tenant’s security deposit as compensation, or by requesting the tenant to make repairs at his or her expense.
What is considered beyond fair wear and tear?
What is beyond fair wear and tear could include alterations to the premises, and the installation of fixtures and fittings, that are not authorised by the landlord. Examples may include:
- Heavily scratched or gouged floors
- Damage to appliances causing them to be faulty
- Stains and odours on carpets
- Knocking down the walls
- Repainting the walls or covering them with wallpaper
- Scribbles on walls that need to be repainted over
- Making unauthorised installations to furniture and windows
As what is considered fair wear and tear, or beyond fair wear and tear, may be case-specific, landlords and tenants should clarify what falls under the “fair wear and tear” clause in their tenancy agreement before signing it.
Wear and Tear in Commercial or Retail Properties
Unlike tenants for residential properties, tenants of commercial or retail properties may not be subject to a “fair wear and tear” clause. Instead, they may be given a fitting-out manual which may stipulate conditions relating to all fitting-out works in the property.
Commercial tenants should then return the property to the landlords in accordance with the terms specified in the manual.
Must the Landlord or Tenant Fix the Damage to Property?
The landlord will typically compare the condition of the property pre-tenancy and post-tenancy to make note of any changes to the property after the tenant has returned it to the landlord.
The landlord is responsible for bearing the costs and expenses of routine cleaning and refurbishments due to fair wear and tear, such as the cost of repainting the walls or replacing appliances that have become faulty over time (where this was not due to the fault of the tenant).
On the other hand, if the damage to the premises is beyond fair wear and tear, the tenant would generally be liable for the cost of repairing the damage.
Can Landlords Deduct Funds from the Tenant’s Security Deposit to Repair Property Damage that is Beyond Fair Wear and Tear?
Tenants normally pay a security deposit to their landlords when renting property which will be refunded to them once the period of the tenancy has expired.
However, landlords may use the security deposit to offset any losses caused by the tenant’s breach of the tenancy agreement, such as a breach of a clause to keep the property in good condition.
Should the property be damaged beyond fair wear and tear, the tenancy agreement may provide that the landlord is entitled to retain the security deposit or deduct an amount that is reasonable to remedy the damage caused.
The tenancy agreement may also state that landlords should first give written notice and time to the tenant to arrange for repairs to be made before making deductions from the security deposit.
Can the Landlord Take Legal Action Against the Tenant if the Security Deposit does not Cover the Damage Caused Beyond Fair Wear and Tear?
If the tenant refuses to make repairs for damage beyond fair wear and tear, or the amount of his or her security deposit is insufficient to cover the costs for repairing damage beyond fair wear and tear, the landlord may choose to seek legal remedies to resolve the tenancy dispute.
Normally, the tenancy agreement may provide for a dispute resolution clause and the parties may choose mediation as their preferred dispute resolution platform. However, landlords may wish to take alternative methods of recourse if mediation is not a feasible course of action.
For example, landlords may wish to sue tenants for a breach of contract if the tenant failed to fulfil his or her obligation in the tenancy agreement to return the property in a condition that is beyond fair wear and tear.
Landlords can sue by making a claim for a breach of the tenant’s obligations in the Small Claims Tribunals (SCT). In order to be eligible to bring their claim to the SCT:
- The property dispute must relate to residential property (the SCT cannot hear claims involving commercial property);
- The tenancy agreement must have been for a duration of for 6 months or more (for HDB property) or 3 months or more (for private property) but with a period of no more than 2 years;
- The property damage must have occurred within the last 2 years; and
- The landlord’s amount of the claim cannot exceed $20,000 (or $30,000 if the tenant agrees in writing to have the dispute heard in the SCT).
Landlords will be required to pay a lodgement fee for filing a claim.
Landlords and tenants are not allowed to engage a lawyer to represent them in the SCT.
What Else is the Tenant Responsible for When Moving Out?
At the expiry of the tenancy term, the tenant should deliver the premises to the landlord in a condition similar to pre-tenancy, apart from authorised alterations and the incurring of any fair wear and tear.
The tenancy agreement may also include a checklist to indicate what the tenant is expected to have done or not done before returning the property.
For example, if the tenant had made alterations to the property by drilling holes or driving nails into the walls, he or she may have to ensure that such holes are patched and touched-up, and that the nails are removed, so as to restore property to its original state before it is returned to the landlord.
The tenant may also be required to have thoroughly cleaned the premises, including all cabinets, wardrobes, appliances, windows, lightings, furniture and fixtures.
Finally, the tenant might be required to remove his or her belongings and other goods brought into the premises, but not remove any items, furniture or fittings from the premises that had already been there pre-tenancy. The tenant may be expected to replace such items if they are removed.
Tips to Prevent Landlord-Tenant Disputes on Wear and Tear and Property Damage
First, it is important for landlords and tenants to take pre-tenancy and post-tenancy photos to be able to identify any possible wear and tear that had existed before the tenancy, or that had arisen during the period of tenancy.
Before moving in, tenants should identify and bring to their landlord’s attention defects in any item of furniture or fittings in the premises, such that the landlord is aware that such defects were not due to the fault of the tenants.
At the end of the tenancy, landlords should also review the pre-tenancy and post-tenancy photos and reach an agreement with their tenants on who should carry out the repairs and for what damage, if necessary.
Next, landlords should provide a move-in checklist to the tenant so that the tenant is aware of the landlord’s expectations for the property’s condition at the end of the tenancy.
It is recommended that the landlord includes photos of any existing defects with the checklist. The usual life expectancy of common items like furniture and appliances can also be included for reference.
The landlord should also sign the checklist to indicate their agreement as to property defects that existed pre-tenancy, and reduce the occurrence of future disputes.
Tenants are generally obliged to keep the premises in a good condition. If the damage is beyond fair wear and tear, the liability falls on the tenant to make good on the damage.
The landlord may then be able to withhold the tenant’s security deposit as compensation, or request the tenant to make repairs to restore the property close to its original condition before the tenant moves out.
As a landlord, if you believe that your tenant has caused property damage that exceeds fair wear and tear, you should consult a landlord-tenant disputes lawyer for advice on the legal actions you can take.
If you wish to sue your tenant for compensation but your claim is not eligible to be heard in the SCT, you may also consider engaging a lawyer to represent you and sue on your behalf in Singapore’s other courts.
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