Fair wear and tear, and what an adjudicator asks

Fair wear and tear is the line every deposit deduction has to cross, and it is the line most claims fall short of. A landlord cannot charge a tenant for the property getting older. They can charge for damage. The whole argument is about which of the two is sitting in front of the adjudicator, and it is decided on paper by somebody who has never seen the building.

Deposits on an assured shorthold tenancy must be protected in one of the three government approved schemes, and each of them offers free adjudication. That service is evidence based and decided on documents alone. There is no site visit, no hearing and no chance to explain what the photograph was meant to show.

What fair wear and tear actually means

The working definition is deterioration from reasonable use of the property and the ordinary passage of time. Carpet flattening in a hallway, paint dulling on a south facing wall, a bathroom seal going tired after four years: all of it is the landlord's cost, because it would have happened to any tenant living there normally.

What the exception does not do is excuse a tenant from the consequences. In Regis Property Co Ltd v Dudley (1959) the courts held that where a defect arises through wear and tear, the tenant is still expected to take reasonable steps to stop it causing further damage. A washer that perishes is wear. A cupboard floor left to rot for eight months under the resulting drip is not.

The four questions an adjudicator works through

Adjudicators are consistent, and their reasoning is easier to predict than most landlords expect.

1. What condition was it in at the start? If there is no dated, photographed record of day one, the claim usually stops here. The burden sits with the landlord, and an assertion is not evidence.
2. How old was the item, and what was its expected life? A carpet with a ten year life that fails in year eight has eight years of value already spent. The tenant is not responsible for the eight.
3. How long was the tenancy, and how many people lived there? Three years of a family of five will leave more behind than eight months of one professional, and the same level of wear means different things in each case.
4. Does the claim leave the landlord better off? This is betterment, and it is where most claims are reduced. Replacing a worn eight year old carpet with a new one is an upgrade, not a repair, so the award is a proportion of the cost rather than the invoice.

The practical effect is that a full replacement cost is almost never awarded. What gets awarded is the share of remaining life the tenant used up, plus genuine damage that sits outside normal use.

Where reports lose the argument

The failure is almost never the deduction itself. It is the record.

A check-in that says "kitchen: good condition" proves nothing, because good is an opinion and nobody can test it eighteen months later. A line that says the oven door seal is intact, the worktop has a 30mm scorch to the right of the hob, and here is the photograph, timestamped, is a fact an adjudicator can work with.

Three things decide it in practice. The check-in has to be detailed enough to compare against. The check-out has to be compared line by line rather than written fresh. And the difference has to be separated into wear on one side and damage on the other, with the age of each item stated, so the apportionment is done for the adjudicator rather than left for them to guess.

That last point is the one agents most often skip. A schedule that hands over a total invoice invites a reduction. A schedule that says the carpet was five years into a ten year life, so half the replacement cost is claimed, tends to survive.

The cheapest moment to fix this

It is day one, and it costs a single visit. Everything the deposit scheme will eventually ask for has to exist before the tenant moves in, because after that it cannot be created honestly.

Emilecon writes check-in, interim and check-out reports across Greater London, photographed and timestamped line by line, with fair wear and tear separated from damage and the apportionment already set out. If you want to see how one reads before committing to anything, send one property and a sample comes back.

This article is general information about how deposit adjudication works and is not legal advice. Where a dispute is significant, take advice on the specific tenancy.