Coming to blows about wear and tear: Problems often arise when reclaiming the deposit on a rented flat, Ian Hunter reports

KIM LOVETT'S tale is a very common one. In August last year she and a friend signed a year-long tenancy on a flat in Brentwood, Essex. It could be terminated at any time after the first six months on one month's notice.

The flat was fully furnished and Kim and Louise Fairman paid a joint pounds 500 deposit. This was to be held as security 'against agreed dilapidations or charges found to have occurred during the tenancy'.

The tenancy agreement also included an inventory that listed the flat's contents together with a brief description of the condition of some items.

In February this year the two decided to leave the flat. They attempted to recover their deposit. The landlord agreed to pay only pounds 285.

A dispute has arisen over the amount deducted for wear and tear. Ms Lovett comments: 'We understand that there should be a small deduction for wear and tear but this seems excessive. We are not trying to be awkward, just fair.'

The lease among other things provided that 'tenants must keep all furniture fixtures and effects therein in the same state and condition as they were in at the beginning of the tenancy as evidenced by the said inventory and schedule of condition'.

Ms Lovett points out that they improved the property by putting up curtain rails and redecorating the lounge. She adds: 'Some things such as the carpet and net curtains were already in a poor condition before we moved in.' This is disputed by the landlord.

Catherine Alabaster, a director of Douglas and Gordon, the west London residential agency, advises tenants, in order to avoid conflict, not only to agree the content of the inventory but also to 'draw up and agree a comprehensive report on the property's state of repair at the start of the lease'. The tenancy should also address the problem of how dilapidationshould be dealt with.

She explains: 'If the curtains and carpets have been professionally cleaned at the beginning of the tenancy it is reasonable for them to be cleaned to the same standard at the end. The problems arise if a cheap job is done at one end and a Rolls- Royce job at the other.'

Ms Alabaster points out that it is not possible in a tenancy agreement to cover every eventuality and disputes will arise. When they do, Ms Alabaster advises the parties to 'keep things simple and not to get over-excited by small things such as the odd missing teaspoon'.

John Guard, a partner with Anstey Sargent & Probert, the Exeter law firm, advises that an effective way for the tenant to retain control of the deposit money is to insist that it is paid into a joint account in the names of both the landlord and the tenant so neither can get access to the money without the agreement of the other. Mr Guard explains: 'Such an arrangement acts as a strong incentive towards reaching an agreement. Tenants should always seek to obtain confirmation, where possible, that any interest that accrues on the deposit is credited to them.'

However, Mr Guard observes that a tenant's ability to control the fate of the deposit will depend on the strength of each side's negotiating position. This is usually dictated by the extent of the availability of rented property.

An alternative way of freeing the deposit is to withhold payment of the last instalment of rent and to set this demand off against the deposit already paid.

A landlord is under no obligation to give credit for improvements or alterations made to the premises. Indeed many leases include a provision requiring the tenant to restore the premises to its original condition. In these circumstances the best policy is to get the landlord's prior approval for any alterations or improvements and if possible a contribution.

In the absence of any expressed mechanism for assessing what proportion of a deposit should be withheld in respect of wear and tear the court will decide the matter on the basis of what is 'reasonable in the circumstances'.

Mr Guard advises that tenancy agreements should include provision for fair wear and tear.

He says: 'In one case where the landlord held on to the deposit money the tenant went to the small claims court in an effort to recover a proportion of the deposit. The tenancy agreement contained no 'fair wear and tear' clause but the court's registrar was still sympathetic to the argument that in those circumstances one could be implied.'

However, pursuing claims in the courts can be a long and time-consuming business, as Ms Lovett and Ms Fairman may be about to discover.

(Photograph omitted)