What to Do If a Tenant Damages the Property12-04-2018 | Damaged Property
No landlord ever wants to discover that damage has been caused to their property by a tenant, or to get involved in a dispute with the tenant about who is responsible for paying for the damage.
When damage initially occurs
In the event of any damage to the furniture or fittings in your property, you should be immediately informed of this by your tenant. You should then be able to discuss arrangements for any repair or replacement, and how this will be paid for.
If there is any disagreement about the repair obligations of the respective parties, clarity should be provided in the assured shorthold tenancy (AST) agreement.
What does the law say?
As well as the tenancy agreement, you can consult the Landlord and Tenant Act 1985 for information on who – the landlord or tenant – is responsible for fixing the damage caused to the property. It is Section 11 that addresses the issue of repairs, stating that tenants should: “Make good any damage to the property caused by the behaviour or negligence of the tenant, members of his/her household or any other person lawfully visiting or living in the property.” This means that if the tenant or anyone they invited to the property caused the damage, it is the occupant who is legally required to pay for or repair it. So if a visitor to the property spills red wine on the carpet, it is the duty of the tenant to clean or even replace the carpet.
But is it actual damage, or just fair wear and tear?
This is a vital distinction to make when you are contemplating what to do if your tenant damages your property. Not only does the law differentiate between actual damage and what can be regarded as fair wear and tear to a property, but it is also becoming more defined in this regard. This means it is no longer down to your discretion as a landlord to classify what counts as fair wear and tear.
‘Fair wear and tear’ can basically be described as damage that inevitably occurs as a result of the property being lived in – such as lightly scuffed walls. A tenant can’t be expected to pay for such damage or have any money deducted from their security deposit to foot the bill. This can be differentiated from genuine damage, which is typically considered to be avoidable destruction, or damage that is more than just the result of use. Examples of such damage would include a broken table or a burn in the carpet. It is this latter type of damage for which you are entitled to deduct an amount from the tenant’s deposit or take legal action against them for compensation.
What are the rules for deducting from the deposit?
You can use the tenant’s deposit to claim back the cost of damage to your property, missing items, cleaning or unpaid rent. However, you must have a valid reason to keep back part of the deposit, and you are only able to deduct the amount needed to correct the damage, with the rest of it being returned to the tenant. You should also bear in mind that if the tenant denies responsibility for any alleged damage, the tenant deposit scheme with which your tenant’s deposit was secured will ultimately decide the fate of your claim, with any decision being final.
If the tenant deposit scheme is forced to make a decision, you will be required to prove that the damage was caused by the tenant, which is where a property inventory – taken at the beginning of the tenancy – can be useful. The tenant is also entitled to ask to be shown receipts or estimates for items that have been deducted from the deposit. Furthermore, if the cost of the alleged damage isn’t covered by the deposit alone, you have the option of applying to a county court to file a claim for a larger amount.
Finally, you’ve also got the option of eviction
If the tenant is still living in the property and you’re dissatisfied with any damage caused, you may have sufficient grounds to evict the tenant. However, it’s a good idea to take legal advice in relation to evictions and problem tenants before taking this route. By ensuring that your tenancy agreement clearly states the consequences of any damage to your property and maintaining open communication channels with the tenant, you can help to minimise the likelihood of lengthy disputes and reach a conclusion that is satisfactory to all parties.
In this article, we haven't covered cases of malicious damage caused by the tenant - this is damage caused deliberately. You can read more about this topic in the property damage section of our advice centre.
Although, it's important to protect yourself against this with landlord insurance. You can find cheap landlord insurance deals with CIA Landlord Insurance that cover malicious damage - so you don't have to pay a penny for the repairs. To find out more, give us a call on 01788 818 670 or get a quote now.