There are lots of comfortable phrases and concepts we all use without ever thinking about what they really mean or how they play out. One example is the well-worn formulation: “ordinary wear and tear excepted.” We see it all the time. Everyone writes it into their leases (and often into property acquisition contracts). To be sure, there are variations. One example is: “wear and tear, damage by fire or damage from any other cause covered by … insurance excepted.” Another is: “fair wear and tear and … excepted.” Regardless of how many words are used with any of these approaches, they all rely on the meaning of “wear and tear.”
Let’s start by trying to define “wear and tear.” Certainly, there are many perfectly fine ways to do so (and certainly there are “contorted” ways to do so if you don’t like the “result” of using a proper definition). Today, we’ll lift one from a 1969 [“time-honored”] decision from a California court:
The exception of ordinary wear and tear contemplates that deterioration will occur by reason of time and use despite ordinary care for its preservation.
The most common place we see an exception for “wear and tear” is in a lease’s surrender provision. What condition must the leased space be in when “returned” to the landlord? What does a tenant have to repair or restore that it didn’t have to repair or restore during the course of its tenancy? [Read more…]