When can a landlord withhold a deposit?

By 03/10/2016 No Comments

Deposit-related disputes can often arise where the landlord and tenant are unfamiliar with their respective legal rights. The purpose of this note is to help explain the legal framework for deposits and define what normal fair wear and tear means.

Governed by law

In Ireland, deposit related disputes are governed by law – specifically, the provisions of the Residential Tenancies Acts 2004 – 2015 (“2004 Act”).

The 2004 Act sets out the circumstances where a landlord is permitted to withhold a deposit – Section 12(1)(d) generally provides as follows :

“A landlord is obliged to return or repay “promptly” any deposit paid by the tenant of a property. This obligation is subject to two exceptions, which arise where :

  • arrears of rent or failure to pay any other charges or taxes in accordance with the lease (e.g. utility bills, refuge bills, insufficient notice given, etc) ; and
  • where a tenant has caused a deterioration to the condition of the dwelling beyond normal wear and tear.”

Failure to pay last month’s rent, etc are typically a question of fact. The majority of deposit related claims relate to cleaning, damage and redecoration – which tend to be subjective, and so we need to consider what normal wear and tear means.

What does normal wear and tear mean ?

The general rule is that a landlord cannot expect the property to be returned in the same condition that it was presented at the commencement of the tenancy.

While normal wear and tear appears undefined at law, various sources suggest that normal wear and tear occurs where deterioration of the property takes place over a period of time due to the ordinary and reasonable use of the dwelling.

Again, the 2004 Act is helpful here – Section 16(f) of the Act provides that in considering normal wear and tear, factors to be considered include :

  • the time that has elapsed from the commencement of the tenancy ;
  • the extent of the occupation of the property the landlord must have reasonably foreseen would occur since the commencement of the tenancy; and
  • any other relevant matters.

Other relevant matters / factors to be considered

In our view, other relevant matters / factors to be considered should include :

  • the number of occupants ;
  • whether there are children living in the property ;
  • whether deterioration to fixtures and fittings reflected “ordinary and reasonable use” ;
  • condition and age of fixtures and furnishings at the date of commencement of tenancy ;
  • type of flooring provided (carpet, tiles, wooden, laminate, etc) ;
  • properties require painting at regular intervals ; and
  • furniture and fittings have a life span.

Examples of damage in excess of normal wear and tear

Damage in excess of normal wear and tear would include :

  • holes in the wall ;
  • burn marks or excessive staining to carpet ;
  • missing fixtures ;
  • nicotine damage (if smoking specifically prohibited under the lease) ;
  • torn curtains ; and
  • broken glass.

How to manage disputes related to wear and tear

If a tenant, you should :

  • maintain photographic evidence (before/after) ;
  • have an agreed inventory list ; and
  • notify your landlord immediately of any previous damage.

If a landlord, you should :

  • inspect the property 3-4 weeks before the end of a tenancy – allows time for damage to be rectified ;
  • follow up with photos and written notification to the tenant to rectify damage ; and
  • if issues are not resolved, should be entitled to retain a portion of the deposit to cover reasonable costs.

What happens if a dispute arises ?

The burden of proof is typically on the landlord. Evidence should be produced – photographs of before and after, invoices to support the age of appliances, invoices to support the cost of repairs, etc.

This note is for guidance only and not to be relied on as legal advice – please be sure to take appropriate legal advice should a deposit related dispute arise.

The Deposify Team

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