damage to premises
📖 What is damage to premises? Meaning and definition
In New Zealand tenancy law, 'damage to premises' is a key concept when determining a tenant's responsibilities at the end of a tenancy. It covers any harm to the rental property, including its fixtures and fittings, that goes beyond what is considered 'fair wear and tear'. This distinction is crucial because tenants are generally not liable for fair wear and tear, but they can be held responsible for other types of damage.
For a landlord to claim compensation for damage, they must first prove that the damage occurred during the tenancy and that it is more than fair wear and tear. This establishes the initial basis for a claim. Once this is proven, the burden shifts to the tenant. To avoid liability, the tenant must then prove that they did not carelessly or intentionally cause or permit the damage. This includes damage caused by people the tenant allowed onto the premises.
The Residential Tenancies Act 1986 (RTA) outlines these responsibilities. For careless damage that occurred after 27 August 2019, specific provisions under section 49B of the RTA apply. Examples of damage can range from issues like water damage due to leaks, to physical harm to walls, door frames, or windows, and even the loss or damage of chattels provided for the tenant's benefit, such as appliances or furniture.
Claims for damage are typically heard by the Tenancy Tribunal, where the party bringing the claim (usually the landlord) must establish their case 'on the balance of probabilities'. This means they must show that it is more likely than not that the damage occurred as claimed and that the tenant is responsible according to the legal framework.
📋 Requirements
- The landlord must prove that damage to the premises occurred during the tenancy.
- The landlord must prove the damage is more than fair wear and tear.
- If the landlord proves the above, the tenant must prove they did not carelessly or intentionally cause or permit the damage to avoid liability.
- Tenants are liable for damage caused by people at the premises with their permission.
📝 Procedure
- The landlord applies to the Tenancy Tribunal for compensation.
- The landlord provides evidence, such as rent records, invoices, or descriptions of damage.
- The Tribunal applies the 'balance of probabilities' standard to determine if the landlord's claims are more likely than not.
- If the landlord establishes damage beyond fair wear and tear, the tenant may present evidence to show they were not responsible.
- The Tribunal makes a decision on whether the tenant is responsible for the damage and the amount of compensation.
💡 Examples
- A tenant was ordered to pay for carpet replacement after water damage at the property, despite claiming issues with waterproofing, because no further rent reductions were agreed upon for ongoing issues.
- A landlord successfully claimed compensation for repairing walls, a door frame, and windows, as well as for missing chattels like a washer/dryer and a lawn mower, after the tenants vacated the property.
- A tenant was found responsible for damage to the premises, leading to an order to pay compensation in addition to rent arrears.
- The landlord provided rent records and water rates invoices to prove amounts owing and to support claims related to property damage.
📚 Legal basis
- Residential Tenancies Act 1986
❓ Frequently asked questions
What is considered 'fair wear and tear'?
Fair wear and tear is the normal deterioration of a property over time from ordinary use. The case excerpts indicate that tenants are not liable for this, but they are liable for damage beyond it.
Can I be held responsible for damage caused by my guests?
Yes, the excerpts state that tenants are liable for the actions of people at the premises with their permission, meaning you could be responsible for damage caused by your guests.
What if the damage was already there when I moved in?
The landlord must prove that the damage occurred during your tenancy. If you have evidence that the damage existed before you moved in, it would be important to present this to the Tenancy Tribunal.
How does the Tenancy Tribunal decide if I'm responsible for damage?
The Tribunal uses the 'balance of probabilities' standard, meaning they decide if it is more likely than not that the damage occurred as claimed and that you are responsible based on the evidence presented.
What kind of evidence do I need to prove I didn't cause the damage?
Evidence could include photos or videos taken at the start and end of the tenancy, communication with the landlord about issues, or statements from witnesses. The excerpts show that tenants need to prove they did not carelessly or intentionally cause or permit the damage.
Does 'damage to premises' include missing items?
Yes, the excerpts show that claims for 'damage to premises' can include compensation for missing chattels provided for the tenant's benefit, such as a washer/dryer or a lawn mower.