“Wear and tear” is often raised when a tenant receives a dilapidations claim.
A tenant may believe that the condition of the property is simply the result of normal use. A landlord may consider that the tenant has failed to comply with its repairing or maintenance obligations.
The distinction is not always straightforward.
What is normal wear and tear?
Wear and tear generally refers to deterioration arising from ordinary use and the passage of time.
Examples might include gradual deterioration of finishes, fittings or other building elements through normal occupation.
However, whether a particular condition amounts to acceptable wear and tear depends on the circumstances and, importantly, the wording of the lease.
Does a repairing covenant change things?
Potentially.
Commercial leases can impose substantial repairing obligations on tenants.
A tenant may therefore be responsible for putting the property into the condition required by the lease even where some deterioration has occurred through ordinary occupation.
The exact wording of the covenant needs to be considered.
What about damage?
Damage caused by misuse, neglect or an event outside ordinary deterioration is different from normal wear and tear.
For example, significant damage to doors, flooring, walls or fittings may potentially represent a breach even where those elements have naturally deteriorated over time.
A surveyor’s inspection can help distinguish between apparent age-related deterioration, general wear and more significant defects.
Does the age of the building matter?
Yes.
The age and original condition of the property can be relevant when assessing the extent of deterioration and the appropriate remedial works.
The surveyor should consider the condition of the relevant element rather than assuming that every imperfect item represents a tenant breach.
Can a landlord charge for replacing an old item?
Not automatically.
The age, condition, expected lifespan and nature of the item may all be relevant when considering whether replacement is reasonably required and whether the tenant is contractually responsible.
The landlord’s claim should be assessed against the lease and the circumstances rather than simply the cost of installing something new.
Stokemont’s advice
“Wear and tear” is not a universal exemption from dilapidations, nor does a tenant automatically become responsible for replacing everything that has deteriorated.
The lease and the actual condition of the property need to be considered together before deciding whether an item represents a genuine dilapidations liability.
