Fair wear and tear
|Fair wear and tear|
Fair wear and tear (also reasonable wear and tear) is interpreted as the natural proces in which materials and constructions wear out over time. First and foremost, they must be exploited in accordance with their intended use, so as to enable their outlasting. Frequently, there is a necessity to determine whether the damage results from negligence or is caused by miscellaneous, inevitable factors. Alongside the neglect, inherent defects and miscellaneous factors, even fair wear and tear is the ground why the property might be found in a bad technical condition (D. Chappell 1984, p. 70).
Fair wear and tear is a clause that is part and parcel of short leases. It allows tenant to be excluded from liability for damage that arose in the natural ageing process. This kind of damage may be triggered either by external elements or by using the premises in accordance with its intended purpose (S. Garner, A. Frith 2010, p. 109).
In the wake of restrictions, the succeeding states of affair are not included in the scope of the elaborated clause (S. Garner, A. Frith 2010, p. 109):
- if the tenant preciptate to dicey situations in the property, which significantly burden it and accelerate its wear and tear, e.g. by storing too heavy goods on the warehouse’s floor;
- if the detriment is caused by natural disasters, which includes earthquakes, fire and flood and do not depend on the tenant's actions;
- if the reason of the damage is caused by a defect originally resulting from fair wear and tear contrary to the damage that is no longer related to reasonable wear and tear.
An examplar of third instance is a tile that falls off the roof as a result of an obsolete structure. This tile itself is connected with fair wear and tear but its lack results in a leak that make living there below impossible. In this type of situation, the tenant is obliged to prevent damage that may result from fire wear and tear. On the other hand, the tenant is not liable for the situation when the stone floor or staircase wear out through everyday use.
Case of liferenter and fiar
A liferenter is entitled to use the fiar’s property. Along with liferenter’s termination, a fiar can take up the property and use it himself. In the meantime, the responsibility of keeping the property in a re-habitable state and carrying out ordinary repairs is shoulderd by the liferenter. The range of exceptions related to fair wear and tear is not easy to determine.
There is therefore a commitment to repair for the liferenter if the heating system becomes defective. If, however, it becomes obsolete, this obligation does not exist, because then it would involve improvement of the property. The repair of a damaged fence, like painting, lies with the liferenter, if it is related to the repair of the property and not its improvement. If, however, as a result of a violent thunderstorm, the roof of the building is destroyed, neither liferenter nor fiar is obliged to repair it (C. Van der Merve, A. L. Verbeke 2012, p. 261-262)
In case of fiar and liferenter, remedies are limited. For the fiar, during the liferenter’s life, the remedy is guarantee of devotion intact. In turn, the liferenter can be asked to pay a caution (C. Van der Merve, A. L. Verbeke 2012, p. 358).
- Burn E. H., Cartwright J., (2011), Cheshire and Burn’s Modern Law of Real Property, Oxford University Press, New York, p. 249
- Chappell D. (1984), Report Writing for Architects, Nichols Publishing Company, New York, p. 70
- Garner S., Frith A. (2010), A Practical Approach to Landlord and Tenant. Oxford University Press, New York, p. 109
- Mandaraka-Sheppard A. (2001), Modern Admiralty Law. With Risk Management Aspects, Cavendish Publishing Limited, London, p. 493
- Van der Merve C., Verbeke A. L. (2012), The Limited Interests in Land, Cambridge University Press, Cambridge, p. 261-262, 358
Author: Sonia Natkaniec