Does a landlord have to prove damages?

Does a landlord have to prove damages?

Following the final inspection of the tenancy, the landlord will send a move out report with a list of things, that needs to be repaired at the tenant’s expense. But who has to prove, whether or not an item was already damaged by the time, the tenant moved in?

The condition of the tenancy when moving in

It is the landlord’s responsibility to prove which condition the tenancy originally was in when the tenant moved in. A landlord, who is renting more than one tenancy, has to do an inspection of the tenancy when the tenant is moving in, and during this inspection draw up a report on the tenancy’s condition. This report is then given or sent to the tenant. The following 14 days, the tenant can add remarks to the report, in case any damages or signs of wear and tear emerge.

However, it is not an obligation to do an inspection when moving in, if the landlord only rents one tenancy. In this case, it is a good idea for the tenant to take pictures of everything and make a detailed list of damages and every sign of wear and tear. The pictures and list should be sent to the landlord within 14 days after the tenant moved in.

How can the landlord prove damages

If it comes to a dispute between the tenant and the landlord when moving out, it is the landlord’s job to prove that the damages were not there when the tenant moved in. The landlord can lift the burden of proof by presenting pictures of the tenancy or comparing the report made when moving in with the report made when moving out, in order to determine what damages or wear and tear that were already present when moving in. If the damage is not noted on the moving in report, the landlord will have a strong case proving that the damages were inflicted by the tenant.

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What if the damages are caused by someone else?

According to Danish law, you are not responsible for other people’s actions. An exception to this rule is, that a tenant will be held responsible to the damages in the tenancy caused by other people. The Danish Rent Act states that the tenant and people, who have been given access to the tenancy by the tenant, are obligated to treat the tenancy responsibly.

The tenant is reliable to damages caused by:

  • The tenants household
  • Visitors
  • A sub tenant.

The tenant is liable for damages caused by negligent behavior. What negligent behavior exactly includes is a bit unclear. In general, it can be said that something can be categorized as negligent behavior, if the displayed behavior deviates from a normal use of the tenancy. The tenant’s knowledge of this behavior being “wrong” is of no matter.

The responsibility applies whether the damages are caused by the tenant or people given access to the tenancy by the tenant. The tenant can have a redress claim towards the person responsible for causing the damage. 

The tenant is not reliable for damages caused by people, that the tenant did not give access to the tenancy, such as burglars.

What are damages versus wear and tear

The tenant has to leave the tenancy in the same condition as it was in when moving in, expect for normal wear and tear that is not included in the tenant’s maintenance obligation. Whether it is the landlord or the tenant who has to pay for the repairs, depends on who is assigned the internal and external maintenance obligation according to the lease.

Furthermore, it is a bit unclear to distinguish between maintenance, that the tenant has to pay for, and normal wear and tear, that the landlord has to pay for. What would be qualified as damage, that the tenant would have to pay for, could be walls damaged by indoor smoking, deep dog scratches or holes in the walls made by seams or sheds. Normal wear and tear could be punctured double glazed windows or a dripping tap, which the tenant would not have to pay for, if the tenant does not have the external maintenance obligation.

 This means that the tenant is not obligated to pay for the replacement of items that cannot be qualified as damaged if;

  • the item is not part of the tenant’s maintenance obligation and
  • the item only has signs of wear and tear, that do not require a replacement.

Although, if the tenancy was rented before July 1st 2015 and in a newly repaired condition, the landlord may be entitled to require you to hand over the residence in a newly repaired condition as well.

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