Appellant Moira Laing had originally sought payment of £2,335.81 for the cost of repairs to the property carried out after the departure of the tenant. The respondent, Kirsty McCorkindale, opposed the appeal and stated she was content with the decision of the First-tier Tribunal.

The appeal was heard by Sheriff Iain Fleming of the Upper Tribunal. The appellant was represented by her husband David Laing, while the respondent made her own representations.

Absolute rubbish

After the respondent left the let property, the appellant carried out what she claimed were essential works consisting of cleaning, repair, and redecoration, required due to the respondent’s negligence. The respondent claimed that the property was left in a reasonable condition, and any damage was attributable to fair wear and tear.

Before the FTS the appellant sought payment of £2,335.81 and lodged 202 pages of material in support of her application comprising receipts, invoices, and photographs of the property. The respondent lodged a smaller inventory of 11 pages of invoices and a doctor’s letter. Having considered the matter, the FTS awarded the appellant £1008.14, but then deducted an overpayment of rent and the deposit of £330, leaving a payable balance of £622.43.

At paragraph 79 of its decision, the Tribunal stated that it adopted a definition of “wear and tear” attributed to the House of Lords in which it was said that it was “reasonable use of the premises by the tenant and the ordinary operation of natural forces”. It took the view that the length of the tenancy was a relevant consideration, with the expected check-out conditions being different for a tenancy of short length as compared to one for five years.

In a written document submitted on appeal, the appellant’s husband described the decision of the FTS as “inaccurate and absolute rubbish”. It was argued that the FTS had failed to adequately consider what constituted fair wear and tear, and that the let property required to be left clean to the same standard as it was at the beginning of the tenancy, irrespective of the length of that tenancy. Additionally, the appellant referred to “a decision of Lord Denning”, later identified as Warren v Keen (1954) as authority for the proposition that a tenant “must take proper care of the place”.

Unrealistic and inappropriate

Sheriff Fleming, in his decision, said of the FTS’s decision: “When one considers all of the factors and compares them with the definition of fair wear and tear by the appellant which is ‘the reasonable deterioration that occurs in a rental property over time, as a result of normal, everyday use during the period of a tenancy’ there is perhaps little to distinguish the position of the appellant and the FTS.”

He continued: “It cannot be said that the FTS applied the wrong test or legal criteria, simply that it did not evidence its sources. Indeed, consideration of the documentation lodged by the appellant indicates that to a great extent the appellant’s dispute is with the application of the test by the FTS to the question of fair wear and tear rather than with the identification of the legal test itself.”

Turning to Lord Denning’s decision in Warren v Keen, Sheriff Fleming said: “I accept that the law as detailed by Lord Denning still applies today. It was not referred to either before the FTS or in the decision of the FTS. That said, it is both unrealistic and inappropriate to expect the FTS to provide an extensive legal document setting out all of the relevant law. What is required is the detail of the factual and legal reasons for the decision. That the FTS did not specifically reference this quote is not an error of law.”

He concluded: “In this particular case, while it would undoubtedly have been preferable had the source of the legal principles which were applied been properly researched and identified by the FTS, that shortcoming, in and of itself, is not demonstrative of, and cannot be classified as, an error in law. That is for the reasons that are identified within the quoted authorities.”

No error in law having been identified, the appeal was therefore refused.