By Sanette Viljoen
Leases often state that the lessor is responsible for reasonable wear and tear. A good lease will also stipulate that the lessee is responsible for the maintenance of the property and that the lessee must return it in the same condition as that in which he found it, with due allowance for reasonable wear and tear. It may also stipulate that reasonable wear and tear is excluded and that the lessor is responsible for reasonable wear and tear.
It is not always clear what reasonable wear and tear means. Can it for instance be distinguished from damage caused to the property? The answer to this question is of course yes. Damage caused to the property means the deterioration of the property beyond the accepted norm. This includes negligent damage to the property.
Reasonable wear and tear is defined as the deterioration of the condition of the property caused by normal use and in the normal course of things. Normal use will, however, differ from case to case because it could change due the purpose for which the premises is leased. If, for instance, you are letting a dance hall, it can be assumed that people will dance on the carpets every night.
Deterioration caused by natural elements will definitely fall under the heading of reasonable wear and tear, e.g. wind, rain, etc.
It is also important that the lessee and the lessor inspect the rented property at the commencement of the lease. Make sure of the condition of the property before you sign the contract. This will provide a reference point for evaluating reasonable wear and tear later.
Although there is no reasonable test for wear and tear, there are a few court cases in our administration of justice that can give an indication of what wear and tear is.
In Radloff v Kaplan 1914 EDL 357 the court described reasonable wear and tear as deterioration or depreciation due to the lapse of time, weather conditions and normal use.
In Sarkin v Koen 1948 (4) SA 438 (C) the court highlighted the fact that the inspection before the commencement of the lease was very important to ascertain the condition of the property. This makes it much easier to see later whether the lessee has discharged his obligation to maintain the property.
It is, however, important to note that a lessee is never obliged to repair a structural defect, e.g. to rebuild a structure that was totally destroyed.