Fair wear and tear

Fair wear and tear (also reasonable wear and tear) is interpreted as the natural process 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).

Main occurance

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).

Examples of Fair wear and tear

• Paint fading on walls due to natural sunlight. This can be seen in homes that have been exposed to sunlight for a long period of time.
• Scratches on wood floors due to everyday use. This is especially common in high traffic areas of the home, such as the kitchen or living room.
• Carpeting wearing out due to foot traffic. Carpeting can wear out quicker in hallways or other highly trafficked areas.
• Minor damage to appliances due to regular use. This could include minor dents or scratches on a refrigerator, or a worn out knob on a stove.
• Wear and tear on furniture due to regular use. This could include minor scratches or dents, or a worn out fabric on a couch or chair.

Advantages of Fair wear and tear

One of the advantages of fair wear and tear is that it does not require the same level of maintenance as other methods of wear and tear. This means that costs associated with upkeep and repair are minimized. Additionally, fair wear and tear can provide a more consistent level of performance and reliability over a longer period of time.

• Fair wear and tear is less likely to cause damage or degradation to the property in comparison to other types of wear and tear, as it is a natural process. This means that the property can maintain its value and condition for longer.
• This form of wear and tear can also help to protect against legal disputes over who is responsible for any damage to the property. As it is a natural process, it can be difficult to pinpoint who is responsible for any damages caused by fair wear and tear.
• Lastly, fair wear and tear can be beneficial to the environment as it helps to reduce waste, as the materials used in the property do not need to be replaced as often. This can help to reduce the consumption of resources, energy and money that would otherwise be spent on replacing items that have worn out due to natural processes.

Limitations of Fair wear and tear

Fair wear and tear can be limited in the following ways:

• It is not applicable to damages caused by intentional or accidental external factors, such as vandalism or fire.
• It is not applicable to miscellaneous defects which were known at the time of purchase/ rental, but not disclosed.
• It is not applicable to damages which resulted from the failure to perform regular maintenance.
• It is not applicable to damages which were caused by not abiding by the user manual or the manufacturer’s guidelines.
• It cannot be used to justify damages which were caused by the lack of necessary parts.
• It does not account for damages which were caused by the lack of knowledge or skill.
• It does not account for damages which were caused by the negligence of the user/ tenant.

Other approaches related to Fair wear and tear

The following are other approaches that are related to the concept of fair wear and tear:

• Depreciation - Depreciation is the measure of the decrease in the value of an asset over its useful life due to wear and tear. This is done in order to better reflect the actual value of the asset.
• Maintenance - Maintenance is necessary to ensure that an asset stays in good condition and does not suffer from premature wear and tear. This can include replacing parts, performing repairs, and cleaning and lubricating components regularly.
• Replacement - When an asset is beyond repair, it may be necessary to replace it with a similar asset. This can help extend the life of the asset and prevent it from becoming damaged due to wear and tear.

In summary, fair wear and tear is the natural process in which materials and constructions wear out over time. Other approaches related to this concept include depreciation, maintenance, and replacement.

Fair wear and tear — recommended articles

Functional obsolescence — Weep hole — Reliability — Substantial completion — Period of indemnity — Non recurring cost — Summary offense — Average clause — Floater policy

References

• 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

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