In an Australian lease, what is the difference between wear and tear and damage? How does it affect my rental bond?
Are you renting? Are you concerned that you may not get your bond back because you’re not sure if the depreciation of the property is considered “fair wear and tear” or “damage”? You’re not alone! This is a very common concern amongst tenants.
So, what is considered fair wear and tear?
In general, tenants are not responsible for fair wear and tear. There is an exception to this rule however and this may occur where the landlord has “contracted out” of any of their responsibilities by including additional terms to the contract. These additional terms may transfer a landlord’s responsibility to the tenant. For example; tenant allowed to keep their dog in the house, on the basis that the tenant is responsible for wear and tear caused by their dog.
“Contracting out” is only legally acceptable on the condition that the specific terms do not conflict with the Tenancy Act or terms of the standard agreement, or in the case where the lease agreement will run for at least 20 years.
If the above applies to your situation, we strongly recommend you seek legal advice as to your legal obligations and whether or not the terms the landlord “contracted out” of are considered “harsh or unconscionable”.
There is no clear legal definition as to what is considered “fair wear and tear,” it will usually depend on the individual circumstances. Generally, if a tenant has not purposefully or neglectfully caused or permitted damage to occur to rental property and the deterioration is a result of normal, everyday use, then the tenant should not be held responsible. You may refer to your property condition report that was completed at the commencement of the Lease to determine the condition of the property at the time you moved in.
Examples of “fair wear and tear” may include; cracked window panes, faded carpets, paint and plaster cracks.
Fair wear and tear is different to damage of property as the latter refers to intentional or neglectful deterioration. Examples of intentional damage may include; paint chipped and holes in walls because of nails being hammered in and scratches on kitchen bench tops due to food being cut directly on a bench top.
If the Landlord places a charge against your bond for the cost of repairs for “damage” which you believe is fair wear and tear, you should consider writing a letter to your landlord explaining why you believe that the deterioration is fair wear and tear. If the Landlord does not accept your explanation, you will need to consider applying to the NSW Civil and Administrative Tribunal for your dispute to be heard. Contact one of our professionals who can help you promptly resolve your dispute and claim back your bond.
For assistance with legal issues associated with your rental bond, contact the experienced professionals at Pathway Lawyers & Migration Agents.