damage to property
📖 What is damage to property? Meaning and definition
In New Zealand tenancy law, 'damage to property' means any harm or alteration to the rented premises that is more significant than 'fair wear and tear'. This concept is crucial because tenants have an obligation to return the property in substantially the same condition as when they started the tenancy, accounting for fair wear and tear. If damage occurs, the landlord may claim compensation from the tenant.
For a landlord to successfully claim compensation for damage, they must prove two things: first, that the damage occurred during the tenancy, and second, that it is more than fair wear and tear. If these points are established, the burden then shifts to the tenant. To avoid liability, the tenant must prove that they, or anyone at the premises with their permission, did not carelessly or intentionally cause or permit the damage.
Examples of damage can include physical harm to structures like a back door or a fence, or alterations such as the removal of a trellis privacy screen that was part of the landlord's property. The Tenancy Tribunal will assess the evidence, such as inspection reports and photographs, to determine responsibility and the cost of reinstatement or repair. Delays in repairing damage, even if caused by the landlord or their agent, can sometimes lead to compensation for the tenant, such as for loss of enjoyment of the tenancy.
📋 Requirements
- The damage occurred during the tenancy.
- The damage is more than fair wear and tear.
- The tenant, or someone with their permission, carelessly or intentionally caused or permitted the damage (unless the tenant can prove otherwise).
📝 Procedure
- Landlord applies for compensation for damage to the premises.
- Landlord provides evidence that the damage occurred during the tenancy and is more than fair wear and tear (e.g., inspection reports, photographs, invoices).
- Tenant has the opportunity to prove they, or others with their permission, did not carelessly or intentionally cause or permit the damage.
- The Tenancy Tribunal determines responsibility and the amount of compensation, if any.
💡 Examples
- A tenant was found liable for removing a trellis privacy screen, which was considered damage because it altered a structure belonging to the landlord.
- A landlord claimed compensation for damage to a back door, but the tenant was not held responsible as the damage was believed to be caused by an ex-partner trying to break in, and not by someone with the tenant's permission.
- A tenant received compensation for loss of enjoyment due to a damaged fence and delayed repairs to window latches and a clothesline, even though the landlord was responsible for the repairs.
- A landlord's claim for cleaning costs was proved, but a deduction was made for the tenant's loss of enjoyment due to delays in repairing 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. It is not considered damage for which a tenant is liable. The Tenancy Tribunal distinguishes between this and actual damage when assessing claims.
Can I be held responsible for damage caused by someone else?
You can be held responsible for damage caused by anyone at the premises with your permission. However, if the damage was caused by someone without your permission, such as a break-in, you might not be liable if you can prove you did not carelessly or intentionally cause or permit it.
What kind of evidence do I need if I'm a landlord claiming for damage?
Landlords typically need to provide evidence like inspection reports from the start and end of the tenancy, photographs showing the damage, and invoices or work orders for repairs to prove the damage occurred and its cost.
What if the landlord delays repairing damage?
If a landlord delays repairing damage that affects your enjoyment of the property, you may be able to claim compensation for loss of enjoyment, as seen in cases where tenants were compensated for delays in fence or window repairs.
Does 'damage to property' include alterations I make?
Yes, alterations to the property, such as removing a structure like a trellis privacy screen, can be considered damage if it changes the property from its original state and was part of the landlord's premises.
What if I disagree with the landlord's claim for damage?
If you disagree, you should present your evidence to the Tenancy Tribunal. This could include proving the damage was fair wear and tear, or that you did not carelessly or intentionally cause or permit the damage. Seeking advice from a qualified lawyer or tenancy expert can be beneficial.