CityLiving: When does tenant's damage justify keeping a deposit, asks Edel Morgan

One landlord's wear and tear can be another's damage and destruction, which is one of the reasons why so many of the landlord/tenant disputes listed on the Private Residential Tenancies Board's (PRTB) web site are about deposit retention.

So far, of the 70-odd disputes determined by the PRTB, a third have been related to landlords keeping deposits. The PRTB says it hasn't carried out an analysis of its deposit-related cases but they tend to arise over the condition of a property at end of a tenancy or when a landlord keeps a deposit in lieu of rent when a tenant breaks a fixed term agreement or gives inadequate notice of leaving.

It is a highly contentious issue, says Stephen Large, services co-ordinator of Threshold's Eastern Region Advice Centre, which is often sparked by conflicting ideas over what constitutes wear and tear. Acceptable wear and tear is generally regarded as the grubby marks on the walls and the slightly worn carpets that a landlord should expect after each tenancy. However, other factors come in to play. Under the Residential Tenancies Act 2004, normal wear and tear should be assessed "having regard to the time that has elapsed from the commencement of the tenancy, the extent of the occupation of the dwelling that the landlord must have reasonably foreseen would occur." So in other words it will vary from tenancy to tenancy.

Not that it's a grey area, says the PRTB. "If the landlord considers that the tenants obligations under Section 16(f) of the Act are not sufficient, then it is open to them to included additional or more specific requirements by way of a letting agreement."

All very well, but when dealing with human beings, it can be difficult to legislate for every situation even with the most detailed letting agreement.

Stephen Large says disputes can "boil down to how clean a tenant leaves a property". We would always advise tenants to ensure the property is cleaned before they leave to avoid argument." Problems can also occur when landlords put rigid stipulations in the lease like requiring the tenant to have the property professionally cleaned before they leave.

A reader contacted City Living to say she has let her property for over a year to a woman and her two young children. On an inspection of the property she was alarmed to find bathroom tiles were missing and cracked and mildew on the walls because the family was not opening the window after having baths. There was some damage inflicted by the children, including mangled Venetian blinds and a hole in a door. She asks if a landlord can reasonably expect no damage if they let it to a family with young children. The state of the bathroom was down to a lack of awareness rather than any malicious intent "but should I put it down to experience or deduct the cost of redecorating it from their deposit when they leave?"

The PRTB says it is open to the landlord to specify particular requirements in a letting agreement "so non-compliance would then constitute a breach of the tenancy obligations and give grounds for keeping the deposit. But it adds: "If the landlord is aware that a dwelling is prone to condensation problem and does not appraise the tenants of the actions they must take to avoid the problem, that could be relevant to a subsequent dispute about withholding a deposit."

Stephen Large says the landlord has responsibility to ensure there is natural and artificial ventilation in a bathroom. "But if the window is not opened and that is adding to the problem that presents another issue . It's like a tenant knowing there is a leak but continuing to use a shower. It might have been down to the landlord to fix it but there is some element of responsibility on the tenant."

Regarding whether landlords should expect their property to take more of a beating if children live there, the PRTB says "the household composition would be a factor that influences the extent of the occupation that a landlord could have reasonably foreseen". The problem, says Fintan McNamara of the Irish Property Owners Association, is that if parents let their kids damage a property, it puts landlords off repeating the experience.

A language barrier may be at the root of misunderstandings, says Stephen Large, where people cannot read the lease. Not that ignorance of the terms of the lease is any defence. The PRTB says when tenants are signing a lease they should ensure they fully understand the terms of the lease "like any other binding contract". Already this year Threshold has dealt with 190 cases concerning deposits. "It can happen if landlord doesn't give it back on the day the tenant leaves. You have to give the the landlord a reasonable period to carry out an inspection and return the deposit."

Fintan McNamara says one way to avoid confusion is for the landlord and tenant to agree an inventory of the contents of the house and the condition each item is in which is signed by both parties. "That way if a pane of glass is broken at the beginning, it says so on the list, so the landlord can't come back and say the glass is broken. This can solve a lot of problems."