What to Do If a Tenant Damages the Property

Thinking of suing a tenant for property damage? No landlord ever wants to discover malicious damage caused by a tenant or get involved in a dispute with the tenant about who is responsible for paying for the damage. We’ll provide information and guidance on tenant property damage and how to sue a tenant for malicious property damage.

Understanding Tenant Property Damage

When deciding to sue your tenant for property damage, it’s important to understand exactly what type of property damage has occurred to ensure it will stand up in court. There are three types of property damage, these include:

• Intentional property damage: This is damage that is caused on purpose but without malicious intent. For example, if a tenant drilled a hole in the wall or removed flooring, etc.
• Unintentional property damage: This is damage that is accidental and wasn’t deliberately planned. For example, hitting a ball through the window or spilling on the carpet.
• Malicious property damage: This is damage that was caused on purpose but with malicious intent. For example, purposely vandalising walls, smashing windows, changing locks, etc.

This is a vital distinction when contemplating what to do if your tenant damages your property. Not only does the law differentiate between actual damage and what can be regarded as fair wear and tear to a property, but it is also becoming more defined in this regard. This means it is no longer down to your discretion as a landlord to classify what counts as fair wear and tear.

‘Fair wear and tear’ can be described as damage that inevitably occurs as a result of the property being lived in, such as lightly scuffed walls. A tenant can’t be expected to pay for such damage or have any money deducted from their security deposit to foot the bill. 

This can be differentiated from genuine damage, which is typically considered to be avoidable destruction, damage that is more than just the result of use or malicious damages caused by the tenant on purpose. Examples of such damage would include a broken table or a burn in the carpet. It is this latter type of damage for which you are entitled to deduct an amount from the tenant’s deposit or take legal action against them for compensation.

What does the law say?

As well as the tenancy agreement, you can consult the Landlord and Tenant Act 1985 for information on who – the landlord or tenant – is responsible for fixing the damage caused to the property. 

It’s Section 11 that addresses the issue of repairs, stating that tenants should: “Make good any damage to the property caused by the behaviour or negligence of the tenant, members of his/her household or any other person lawfully visiting or living in the property.” 

This means that if the tenant or anyone they invited to the property caused the damage, it is the occupant who is legally required to pay for or repair it. So if a visitor to the property spills red wine on the carpet, the tenant must clean or even replace the carpet. 

However, there are exemptions to this, for example, property damage caused by fair wear and tear or the landlord’s failure to maintain the property. If you’re facing malicious damage caused by a tenant or other property damage, it is important to consult legal professionals for further advice.

Documenting property damage

In the event of any damage to the furniture or fittings in your property, you should be immediately informed of this by your tenant. You should then be able to discuss arrangements for any repair or replacement, and how this will be paid for. 

It is important to also document any type of tenant property damage by taking photographs and witness statements. This will be essential if you are thinking of taking legal action and suing your tenant for property damage. If there is any disagreement about the repair obligations of the respective parties, clarity should be provided in the assured shorthold tenancy (AST) agreement.

What are your options for dealing with tenant property damage?

There are various ways you can choose to deal with tenant property damage, and these will most likely depend on the type of property damage and the relationship between you and your tenants.

Negotiate or mediate with the tenant

Sometimes, the best way to deal with tenant property damage is by negotiating with the tenant or bringing in a third party to help resolve the problem. This is a lot more desirable than taking legal action and can work out cheaper and less stressful than other options.

Small claims court

If the damage is quite small, small claims courts can be a quick and cost-effective way to resolve tenant property damage and disputes.

Use the tenant’s deposit

You can use the tenant’s deposit to claim back the cost of damage to your property, missing items, cleaning or unpaid rent. However, you must have a valid reason to keep back part of the deposit, and you are only able to deduct the amount needed to correct the damage, with the rest of it being returned to the tenant. 

You should also bear in mind that if the tenant denies responsibility for any alleged damage, the tenant deposit scheme with which your tenant’s deposit was secured will ultimately decide the fate of your claim, with any decision being final.

If the tenant deposit scheme is forced to make a decision, you will be required to prove that the damage was caused by the tenant, which is where a property inventory – taken at the beginning of the tenancy – can be useful. The tenant is also entitled to ask to be shown receipts or estimates for items that have been deducted from the deposit. Furthermore, if the cost of the alleged damage isn’t covered by the deposit alone, you have the option of applying to a county court to file a claim for a larger amount.

Evict the tenant

If the tenant is still living in the property and you’re dissatisfied with any malicious damage by the tenant, you may have sufficient grounds to evict the tenant. However, it’s a good idea to take legal advice about evictions and problem tenants before taking this route. 

By ensuring that your tenancy agreement clearly states the consequences of any damage to your property and maintaining open communication channels with the tenant, you can help minimise the likelihood of lengthy disputes and reach a conclusion that is satisfactory to all parties.

Sue the tenant

If you are dissatisfied with malicious damage by the tenant or intentional property damage, you might consider suing your tenant. However, it can be expensive and time-consuming to sue your tenant, and there’s not always a guarantee that it will be a successful outcome in the end. If you do decide to sue your tenant for property damage, it’s important to document evidence, communicate with your tenant, and consult legal professionals.

It’s important to protect yourself against tenant property damage with landlord insurance. You can find cheap landlord insurance deals with CIA Landlords that can cover certain malicious damage. To find out more, give us a call on 01788 818 670 or get a quote now.