fair wear and tear
📖 What is fair wear and tear? Meaning and definition
In New Zealand tenancy law, 'fair wear and tear' is a crucial concept when determining a tenant's liability for damage to a rented property. It distinguishes between damage caused by the tenant's actions (or those of their guests) and the natural aging or degradation of the property's components. Landlords must prove that any damage to the premises occurred during the tenancy and is more than just fair wear and tear. If the damage falls within the scope of fair wear and tear, the tenant is not liable.
If a landlord establishes that the damage is more than fair wear and tear, the responsibility then shifts to the tenant. To avoid liability, the tenant must prove that they did not carelessly or intentionally cause or permit the damage. This includes damage caused by people at the premises with the tenant's permission. This legal framework helps ensure that tenants are not held accountable for the unavoidable effects of time and normal living.
For damage that is caused carelessly and occurs after 27 August 2019, specific rules under section 49B of the Residential Tenancies Act (RTA) apply. If the landlord becomes aware of such damage after this date, it is presumed to have occurred after that date unless the tenant can prove otherwise. Furthermore, if this careless damage is covered by the landlord's insurance, the tenant's financial liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent for income-related rent payers). This limitation provides a degree of protection for tenants against significant costs for accidental damage.
📋 Requirements
- Damage to the premises occurred during the tenancy.
- The damage is more than fair wear and tear.
- If the damage is careless and occurred after 27 August 2019, section 49B RTA applies.
- If the damage is careless and covered by the landlord's insurance, specific liability limits apply.
📝 Procedure
- Landlord proves damage occurred during the tenancy and is more than fair wear and tear.
- If established, tenant must prove they did not carelessly or intentionally cause or permit the damage.
- If damage is careless and after 27 August 2019, section 49B RTA applies.
- If careless damage is insured, tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
💡 Examples
- A landlord claims compensation for a worn carpet, but the Tenancy Tribunal determines the wear is consistent with several years of normal foot traffic, classifying it as fair wear and tear.
- A tenant accidentally breaks a window, which is clearly more than fair wear and tear, and because it was careless and covered by the landlord's insurance, their liability is capped at the insurance excess.
- Scuff marks on a wall from moving furniture are considered beyond fair wear and tear, and the tenant is found liable for the repair costs.
- Fading paint due to sunlight over a long tenancy is typically considered fair wear and tear, as it's a natural process.
📚 Legal basis
- Residential Tenancies Act
❓ Frequently asked questions
What is the difference between 'fair wear and tear' and 'damage'?
Fair wear and tear refers to the natural deterioration of a property from normal use over time, like faded paint or worn carpet. Damage, on the other hand, is harm to the property caused by a tenant's actions, carelessness, or intentional acts, such as a hole in a wall or a broken appliance.
Who decides what counts as fair wear and tear?
If there's a dispute, the Tenancy Tribunal will decide what constitutes fair wear and tear based on the evidence presented by both the landlord and the tenant. They will assess whether the damage is beyond what would be expected from ordinary use.
Am I responsible for damage caused by my guests?
Yes, tenants are liable for damage caused by people at the premises with their permission. If your guest carelessly or intentionally causes damage that is more than fair wear and tear, you could be held responsible.
What happens if the damage is careless and covered by the landlord's insurance?
If the damage was caused carelessly (not intentionally) and occurred after 27 August 2019, and is covered by the landlord's insurance, your liability as a tenant is limited. You would pay the lesser of the insurance excess or four weeks' rent (or four weeks' market rent if you pay income-related rent).
Does 'fair wear and tear' apply to cleanliness?
No, the concept of fair wear and tear generally applies to the physical condition of the property's components, not its cleanliness. Tenants are expected to leave the premises reasonably clean and tidy and remove all rubbish at the end of the tenancy, regardless of how long they have lived there.
How can I protect myself from claims of damage beyond fair wear and tear?
It is highly recommended to take detailed photos or videos of the property's condition at the beginning and end of your tenancy. This evidence can help demonstrate what was pre-existing damage versus new damage, and what might be considered fair wear and tear.