This question regularly crops up at the end of a tenancy.

The House of Lords defined fair wear and tear as “Reasonable use of the premises by the Tenant and the ordinary operation of natural forces“. The ‘natural forces’ being sunlight, rain, wind and ageing.

Whilst there is no one legal definition of damage it is widely interpreted as permanent or temporary impairment of value or usefulness

When considering whether something is damaged, ask yourself if the part of the property or item in question has been devalued or has had it’s usefulness impaired. If the answer is no, then there is no damage. (Hint: Would you expect to pay the same price for chipped tiles in the local hardware store as tiles that are not chipped?) Then ask yourself was the tenant making reasonable use of that part of the property? If the answer is no, then the tenant is liable for the damage.

Examples of “Fair Wear and Tear” include:

• cracked window panes due to old warped frames
• paintwork that has faded or discoloured over time
• plaster or brickwork cracks that appeared as the building settled
• cracked floor or wall tiles resulting from structural movement
• carpets worn from day-to-day use
• Micro-scratches on kitchen worktops marked or scratched by kitchen implements – but not dents or deep scratches
• Micro-scratches on laminate flooring or floor tiles marked or scratched by people walking on the floor – but not dents, chips or deep scratches
• White goods worn as a result of normal usage – rather than the tenant’s misuse
• Paint worn around light switches and door handles – but not dirt

The Guide to Best Practice for Inventory Providers published by the Association of Residential Letting Agents (ARLA) states that fair wear and tear is based on the following criteria:

1. the length of the tenancy
2. the number and ages of the tenants
3. the condition and age of the item or items at the start of the tenancy
4. the expected useful lifespan of the item or items and the expected appropriate use of such item or items
5. whether any work or repairs were carried out during the tenancy

Two points to remember when involved in fair wear and tear assessments:

1. The tenant is paying rent for fair wear and tear. Don’t penalise a tenant for walking on the carpets!

2. If damage needs to be put right, the landlord cannot demand betterment i.e. be in a better position than he/she was before the damage occurred. Demanding a ‘new for old’ replacement is not acceptable and if the tenant has scraped his bicycle along the wall then you cannot expect the whole wall to be redecorated.

There are no laws that specifically mention landlord’s or tenant’s responsibilities for trees and it is usually dependent on the Tenancy Agreement to decide. Trees are technically part of the ‘property’ the tenant is renting.

For a range of reasons ‘generally’ tenants are not good at maintaining gardens. The idea of sitting on a groomed lawn with a glass of Pimms is much more appealing than being on your hands and knees tearing up Japanese knot-weed.

I would say if a landlord is particular about their garden or have some shrubs or bushes that would benefit from specialist care I recommend that they offer the services of a gardener on an occasional basis for those shrubs that need it. Equally the same rule applies to trees. However trees differ from shrubs in that they are more likely to require specialist access (e.g. platforms/ladders) and the pruning/lopping of branches requires specialist knowledge if the tree is to be preserved and falling branches introduce health and safety issues.  A caring conscientious landlord would probably offer the services of an aboriculturist to take care of the trees though not obliged to. There is a ‘remote’ chance that if a landlord was to insist the tenant ‘lops the offending branch off the tree’ himself and the tenant gets injured, the landlord may face a claim for damages. I am not aware of any cases but just thinking laterally. One possible workaround is to provide the tenant contact details for an aboriculturist and suggest he does not do any pruning himself for safety reasons.

What about your experience of gardens and trees in rental property?

In England & Wales, there are two routes to achieve a safe and legal installation:

1. Installation by a HETAS registered installer

When a HETAS registered engineer has completed an installation, they self-certify their work as compliant with legal requirements. The consumer will receive a HETAS Certificate of Compliance and the installation is notified to the local authority Building Control department so that there is filed evidence of the engineer completing work that is compliant with Building Regulations.

To find your nearest HETAS registered engineer visit http://www.hetas.co.uk/nearest_member/

2. Installation by an unregistered person

For an unregistered person to install a solid fuel appliance, flue liner, hearth, flue system or anything between and including hearth and chimney pot, plans have to be submitted to, and passed by, your Local Authority’s Building Control Department.

When the work has been completed, Building Control have to pass off the job as satisfactory and then issue a HETAS Certificate of Compliance. Local Authorities charge for this. You will also need to supply and fix a Data Plate specifying the work done and any limitations of use. This is a legal requirement. Sample Data Plates can be found in Building Regulation Document J.

In the event of an insurance fire claim your insurance company will require the HETAS Certificate of Compliance.

A note about chimneys and chimney lining

There is no regulation requiring an existing chimney to be lined.

However, the installer of any appliance must satisfy themselves that the chimney is free from defects and suitable for its intended use. If any work undertaken on the chimney (including installation of a new liner) is done in conjunction with the installation of a heating appliance, then that work is a controlled service and must be undertaken by a Competent Person or approved by your Local Authority Building Control Department. Note also that any alteration to a fireplace which renders it capable of being used for a different fuel – e.g. from gas to solid fuel, is subject to Building Regulations.

Is your installation safe and legal?