As a general rule, tenants are not liable for damage to their rented property caused by “fair wear and tear”. As property managers it is our job to assess wear and tear on a property and decide what is ‘fair’. Thanks to our many years of property management we have become ‘dab’ hands’ at doing this, but for landlords out on their own it can be a minefield. This blog provides a short explanation of what the law says in New Zealand.
In accordance with Section 40 of the Residential Tenancy Act 1986 (Tenant Responsibilities), damage is defined as follows:
(4) Where any damage (other than fair wear and tear) to the premises is proved to have occurred during any tenancy to which this Act applies, it shall be for the tenant to prove that the damage did not occur in circumstances constituting a breach of subsection (2)(a).
In other words, tenants are not liable for any damage caused to a property that has come about as a result of reasonable use of the property, but they must prove they did not “2(a) intentionally or carelessly damage, or permit any other person to damage, the premises”.
The tenancy services website explains it like this –
Fair wear and tear refers to the gradual deterioration of things that are used regularly in a property when people live in it.
An example of this would be where a stove element wears out from normal cooking. This is fair wear and tear. However, if the stove was being used to heat the kitchen and stopped working properly, this would not be considered normal use.
Take carpets for example, while burn marks and stains would be considered damages, fading and thinning of carpet is usually considered fair wear and tear. Of course the length of tenancy comes into play here i.e. you wouldn’t expect carpet to thin dramatically over a 6 month tenancy, but would expect this to occur if a tenant had been there a number of years.
The number of tenants and their age also plays a part in wear and tear. The more bedrooms and tenants that you have the more wear and tear will occur in shared spaces like living rooms and bathrooms. Children are also more active in a house than adults. If you rent to couples as opposed to families then your property will have less wear and tear.
The lifespan of chattels such as dishwashers and ovens should also be taken into consideration. If your dishwasher has stood the test of time but finally breaks down after 10 years then it would be unreasonable to claim this as damages.
If there are any disputes between a landlord and tenant about ‘fair wear and tear’ then the tenant can make an application to the Tenancy Tribunal disputing the landlord’s bond claim (if the landlord is claiming for damage caused by ‘fair wear and tear’ against the bond). This type of dispute may be resolved through mediation, the first step in the dispute resolution process, or may proceed to a Tribunal hearing.
To keep our landlords protected, we always take digital photos of every room before a tenant moves in, these can then be used to compare the state of the property at the termination of tenancy. We also carry out regular checks on properties and ensure maintenance issues are up-to-date.
As you can see, it can be very tricky navigating your legal requirements as a landlord, that’s why we recommend using an experienced property manager.