premises damage
📖 What is premises damage? Meaning and definition
In New Zealand tenancy law, premises damage is a key consideration when a tenancy ends, particularly if the landlord seeks compensation from the tenant. The landlord must demonstrate that the damage happened while the tenant was living in the property and that it is more significant than the normal deterioration expected from everyday use, known as 'fair wear and tear'. This distinction is crucial because tenants are not typically liable for fair wear and tear.
If the landlord successfully proves that damage occurred beyond fair wear and tear, the responsibility then shifts to the tenant. To avoid being held liable, the tenant must prove that they did not carelessly or intentionally cause or allow the damage to happen. Tenants are also held responsible for any damage caused by people they permitted to be at the property.
For careless damage that occurred after 27 August 2019, specific rules apply under section 49B of the Residential Tenancies Act 1986. If the landlord's insurance covers this careless damage, the tenant's financial liability is limited. This limit is either the amount of the insurance excess or four weeks' rent (or four weeks' market rent for income-related rent payers), whichever amount is less. However, tenants are fully liable for the cost of repairing damage that was intentional or resulted from an activity at the property that constitutes an imprisonable offence.
📋 Requirements
- The landlord must prove the damage occurred during the tenancy.
- The landlord must prove the damage is more than fair wear and tear.
- If established, 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
- Landlord applies for compensation for damage to the premises.
- Landlord provides evidence, such as photos and invoices, to prove the damage and associated costs.
- The Tenancy Tribunal determines if the damage occurred during the tenancy and is more than fair wear and tear.
- If so, the Tribunal assesses whether the tenant is liable, considering if the damage was careless, intentional, or caused by someone permitted on the premises.
- If liability for careless damage is established and covered by insurance, the tenant's payment is limited to the lesser of the insurance excess or four weeks' rent.
💡 Examples
- A tenant was held liable for damage to an oven hob and carpet that was deemed beyond fair wear and tear.
- A tenant was ordered to pay for rubbish removal and overgrown lawns, as these were not considered fair wear and tear at the end of the tenancy.
- A landlord withdrew claims for curtains and a plaster repair, indicating these might have been considered fair wear and tear or not sufficiently proven as damage.
- A tenant was ordered to pay $6,689.14 for damages and rent arrears, with the damage portion assessed under the rules for careless or intentional damage.
📚 Legal basis
- Residential Tenancies Act 1986
❓ Frequently asked questions
What is 'fair wear and tear' in New Zealand?
Fair wear and tear refers to the normal deterioration of a property over time from ordinary use. It is not considered damage for which a tenant is liable; examples might include faded paint or worn carpet in high-traffic areas.
How does a landlord prove premises damage?
A landlord typically proves premises damage by providing evidence such as photos taken before and after the tenancy, invoices for repairs, and detailed descriptions of the damage. This evidence helps show the damage occurred during the tenancy and is beyond fair wear and tear.
Am I responsible for damage caused by my guests?
Yes, under New Zealand tenancy law, tenants are liable for damage caused by any people they have allowed to be at the premises. This means you are responsible for the actions of your guests.
What if the damage was accidental?
If the damage was caused carelessly (accidentally) after 27 August 2019, and if the landlord has insurance that covers it, your liability as a tenant is limited. You would typically be liable for the lesser of the insurance excess or four weeks' rent.
What is the difference between careless and intentional damage?
Careless damage is accidental, while intentional damage is caused on purpose. Tenants face full liability for intentional damage or damage resulting from an imprisonable offence, whereas liability for careless damage may be limited if the landlord has insurance.
What if my landlord claims for damage I didn't cause?
If a landlord claims for damage you believe you did not cause, you have the opportunity to present your evidence and arguments to the Tenancy Tribunal. The landlord must first prove the damage occurred during your tenancy and is more than fair wear and tear.