This fact sheet will clarify the idea of "fair wear and tear" and help you to get your bond back. Many tenants can feel anxious near the end of your lease because your landlord may try to make a claim on your bond. Actually, the law in the ACT says that certain damage is okay - as long as it is "fair wear and tear", and your landlord cannot make a bond claim for this sort of damage. But the legislation is not super helpful when trying to figure out what this really means! This is where we come in.
TLDR:
- Your landlord can make a claim on your bond if the property is returned in a condition that isn’t substantially the same as when you moved in.
- However, your landlord can’t use your bond money to fix damage which is fair wear and tear.
- It isn’t always easy to know if your wear and tear is fair, but as a starting point: damage which results from normal expected use of a residential property is okay.
- Although it is expected that accidents may occur during a tenancy, you need to take some steps to lessen the risk and the impact of that risk.
- However, this doesn’t mean you need to be walking on eggshells because ACAT (the ACT Civil and Administrative Tribunal) won’t be as strict as your landlord. After all, you pay to live in the property and so you shouldn’t be penalised for actually living in it.
- Also: it’s always good to know you can put in a bond refund form yourself without your landlord’s signature!
Fair wear and tear is allowable when it comes to the end of a tenancy
The Act says:
64 The tenant must leave the premises— … (b) in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted. (emphasis added)
This means that you don’t have to return the property in exactly the state it was when you moved in. The use of the word substantially means that you can’t completely renovate the place but you also don’t have to exhaust yourself getting oil stains off the driveway. It’s OK if it is different from when you moved in!
Fair wear and tear cannot be taken from your bond.
The Act allows your lessor to make a deduction from your bond for repairs, but only when that isn’t due to “fair wear and tear”:
31 A lessor is entitled to deduct from the bond paid under the residential tenancy agreement any of the following: (a) the reasonable cost of repairs to, or the restoration of, the premises or goods leased with the premises as a result of damage (other than fair wear and tear) caused by the tenant;
This means that your landlord can make a claim on your bond for damage, but not if that damage was “fair wear and tear”. But what exactly is fair wear and tear?
What is "fair wear and tear"?
To claim the fair wear and tear exception we need to be able to identify (a) fair (b) wear and (c) tear.
Centuries of legal practice establish what these terms mean (Maroney v Bullard contains an extended discussion).
Wear means “Disrepair caused by the normal or ordinary operations of natural causes, such as sun, wind and weather”.
Tear means “Disrepair caused by a tenant…as a normal and unintentional incident of their occupation of the property”. (emphasis added)
Any kind of “tear” is what you need to look out for, as it involves you as the tenant. The landlord might say that the damage was intentional, reckless, or negligent. The property agent might try to scare you by saying that you have to pay to replace the carpet because it has been sun-bleached. This is a clear example of “wear” and is almost always fair!
Unintentional damage which results from the normal use of a property is usually fair
The phrase “fair wear and tear” contains the word “fair” for a reason, if there was no fairness requirement then any kind of damage would be allowed! If you want to get your bond back, you need to be able to make the case that the wear or tear is fair.
Your landlord doesn’t get to decide this! Really, ACAT is who decides what is fair. They try to be as objective as possible when making this decision: the attitude they take is not the same as the carefree tenant nor that of an excessively strict landlord (Maroney v Bullard). A key to ask yourself: was the damage unintentional and caused by something a tenant would normally do? (Abela v Walker)
For example, if you were operating industrial machinery in your living room and there was significant damage to the walls as an unintentional result of this use, you will not be successful in claiming fair wear and tear because it is hardly a normal use of residential property.
Sometimes the question of fairness is not as clear cut as this. The best way to understand what is fair and what isn’t is to look at how ACAT has applied this standard in previous cases.
You don’t have to go to ACAT to respond to the claims of the landlord or agent
ACAT is the venue of dispute resolution and should be turned to as a last resort. The usual process is that you will get a final condition report which says that some things are broken and in need of repair or replacement. If you feel as though the damage is fair wear and tear, your best bet is to respond in writing to dispute the claim. In your email, quote the relevant sections of the legislation above, and try to build an argument that the damage was not intended and a result of normal use of the property. If you are interested, see below for an overview of some relevant ACAT decisions that will be helpful in making such an argument. If you can't reach an agreement, you can put in a bond refund form yourself, without your agent/landlord's signature, and then the bond office will ask them to respond.
Summing up Fair Wear and Tear
This is an overview of how fair wear and tear relates to getting your bond back. The legislation is clear in stating that fixing damage which can be defined as fair wear and tear is not an allowed use of your bond money. Fair wear and tear is not defined in the legislation so we have to look at how it is applied in real cases. From this we can see that wear and tear is damage that has occurred either through natural causes or as an unintended consequence of normal occupation. Furthermore, we can see that the fairness aspect is assessed objectively and with the specific circumstances of the property in mind. You can flesh out your understanding of fair wear and tear by looking at some of the ACAT decisions described tomorrow.
If you need specific legal guidance, the best thing to do is contact Legal Aid ACT as early as possible. Remember that evidence is crucial in these sorts of disputes so be sure to collect all available written and visual evidence about the state of the property at the beginning and end of the tenancy.
Appendix: What has the Tribunal said previously?
Bell & Bell v Boccola, Campbell & Lawrence (Residential Tenancies) [2009] ACAT 26
Wooden Flooring
This case concerns damage done to floating wooden flooring, which refers to a plywood flooring which is covered with a thin layer of wood laminate. A significant amount of damage to the flooring was noted by the landlords upon vacation of the property. There was no evidence of special instruction regarding care of the flooring nor was there any term in the tenancy agreement which related to the obligations of the tenants with respect to the flooring. Without any extra term, the obligations of the tenants are limited to what the normal residential tenancy agreement says.
Usefully, the Tribunal offers a non-exhaustive list of factors that the Tribunal should consider when deciding whether particular damage is fair wear and tear:
“The age, quality and condition of any item at the beginning of the tenancy;
The average useful lifespan of the item;
The reasonable expected use of such an item;
Any special terms of the tenancy agreement relating to that item;
The number and type of tenants, and
the length of the tenants occupancy.”
The result in this case was that the tenants were found not liable for the damage as it was incurred through normal use of the property. The quality of the flooring was such that it was ridiculously easily damaged - at the hearing a set of keys were dropped from the height of about half a metre and left a visible dent. As such, the damage was the result of normal and standard use of a residential property.
Tankard & Anor v Ogbonna & Anor (Residential Tenancies) [2017] ACAT 72
The decision in Tankard is instructive because it covers a number of different types of damage. The damage to carpet, blinds, walls, and more are discussed separately.
Carpet
Over the course of the tenancy, the carpet became covered in a number of spots covering an area of about 10cm x 10cm. At the Tribunal, the cause of damage was considered. Even though the damaged area was pretty small, the cause of the damage was spilled make-up. The Tribunal stated: “In my view, spillage of make-up on a bedroom carpet that causes irremovable stains is not fair wear and tear. The possibility of spillage should, in my view, have been anticipated such that the make-up should have been applied in a bathroom where spillage is unlikely to have caused damage and could have been quickly addressed”.
So, the activity which caused the damage is relevant in deciding if the wear and tear is fair. For example, if you were giving your dog a bath on the carpeted hallway and the carpet became soaked and eventually stained, the suitability of the space for the activity and the foreseeability of damage would mean that it is likely that the resulting wear and tear would be unlikely to be fair.
Blinds
Through the years that the property was occupied the operation of the blinds became impaired. The Tribunal noted that the characteristics of the blinds were such that they could be damaged with ease and without abnormal use of the item: “Blinds are, by definition, items to be opened or closed perhaps daily and are a combination of moving parts. They are, as a general rule, not robust.” In addition, the damage was minor. The expected frequency of use and the characteristics of the item are therefore a relevant consideration for the Tribunal. If you’re worried that an item is no longer functioning as it did when you moved in, ask yourself: what sort of quality is the item (cheap window latches will break much easier than expensive high quality latching mechanisms) and is the character of the item such that damage is almost inevitable (such as in this case, where blinds are designed to be used everyday and operate using a number of interacting mechanisms and small parts).
Clay v Hatala (Residential Tenancies) [2016] ACAT 128
The decision in Clay extends beyond fair wear and tear but contains some statements which help us to understand what is and isn’t fair wear and tear.
Marks from Posters and Paintings
“The Tribunal was satisfied, on the basis of the evidence filed by the parties, that plaster had come off walls resulting in “holes”, that plaster had come off walls because of the removal of sticky tape and/or picture hooks, that there were tears to curtains and carpet stains. These things do not constitute fair wear and tear.”]
The tribunal was quite clear in stating that this sort of damage does not fall under the fair wear and tear exception. Even though hanging up posters or pictures is something which is arguably a normal use of a residential property, the act was intentional and the damage that resulted was foreseeable.