Understanding Fair Wear and Tear in Residential Tenancies
In New Zealand residential tenancy law, fair wear and tear refers to the natural and gradual deterioration of a rental property and its fittings that occurs through normal, everyday use over the course of a tenancy. It is an expected consequence of living in a property and is generally not considered damage for which a tenant is responsible.
Distinguishing Fair Wear and Tear from Damage
The key distinction lies in the cause of the deterioration. Landlords are typically responsible for maintaining the property in a reasonable state of repair, which includes addressing issues arising from fair wear and tear [Source: Residential Tenancies Act 1986, s 45(1)(a)].
Conversely, tenants have an obligation not to damage, or permit any other person to damage, the premises intentionally or carelessly [Source: Residential Tenancies Act 1986, s 40(2)(a)]. If damage occurs due to a tenant's intentional act, careless act or omission, or the actions of a person for whom the tenant is responsible (e.g., their guests), the tenant may be liable for the cost of repairs [Source: Residential Tenancies Act 1986, s 49B]. The Residential Tenancies Act 1986 sets limits on a tenant's liability for careless damage, typically to a maximum of four weeks' rent or the landlord's insurance excess (whichever is lower) for each event of careless damage [Source: Residential Tenancies Act 1986, s 49B(2)].
Examples of Fair Wear and Tear
Examples of fair wear and tear may include:
- Faded curtains or paint due to sun exposure.
- Worn carpet in high-traffic areas, such as hallways or entrances.
- Minor scuffs, marks, or scratches on walls from normal furniture placement or movement.
- A loose door handle or a stiff tap that has deteriorated over time.
- Worn sealant around a shower or bath.
- Lightly scratched floors from normal foot traffic.
Examples of Tenant-Caused Damage
Examples of damage that would typically be the tenant's responsibility (if caused by them or their invitees) may include:
- Large holes in walls or doors.
- Burns or rips in carpets or curtains.
- Smashed windows or broken mirrors.
- Deep scratches, chips, or gouges on floors or benchtops.
- Significant stains on carpets, walls, or fixtures that go beyond normal cleaning.
- Blocked drains caused by flushing inappropriate items.
- Pet damage such as scratches on doors or significant odours.
Obligations of Landlords
Landlords have a duty to:
- Maintain the premises in a reasonable state of repair [Source: Residential Tenancies Act 1986, s 45(1)(a)].
- Comply with all building, health, and safety standards that apply to the premises [Source: Residential Tenancies Act 1986, s 45(1)(c)].
- Ensure the premises are reasonably clean [Source: Residential Tenancies Act 1986, s 45(1)(b)].
Obligations of Tenants
Tenants have several obligations, including to:
- Keep the premises reasonably clean and tidy [Source: Residential Tenancies Act 1986, s 40(1)(c)].
- Not damage, or permit any other person to damage, the premises intentionally or carelessly [Source: Residential Tenancies Act 1986, s 40(2)(a)].
- Notify the landlord as soon as practicable of any damage to the premises or of any need for repairs [Source: Residential Tenancies Act 1986, s 40(1)(d)].
- Leave the premises reasonably clean and tidy and remove all rubbish at the end of the tenancy [Source: Residential Tenancies Act 1986, s 40(1)(e)].
The Role of Property Condition Reports
While the Residential Tenancies Act 1986 does not explicitly mandate condition reports, completing a detailed property condition report at the start and end of a tenancy is a best practice. Such reports, often accompanied by dated photographs or videos, provide crucial evidence of the property's condition at different points in time. This evidence can be vital in resolving disputes over fair wear and tear versus damage, by helping to demonstrate the state of the premises before the tenancy began and at its conclusion.
Resolving Disputes
If a landlord and tenant cannot agree on whether something constitutes fair wear and tear or damage, or who is responsible for repair costs, either party can apply to the Tenancy Tribunal for a resolution [Source: Residential Tenancies Act 1986, s 77]. The Tenancy Tribunal is a judicial body that hears and decides disputes between landlords and tenants. Before a hearing, the Tenancy Tribunal often offers mediation services to help parties reach an agreement [Source: Residential Tenancies Act 1986, s 85].
When to Seek Independent Legal Advice
Navigating disputes regarding fair wear and tear or damage can be complex. Individuals requiring clarification on their specific situation or assistance with a Tenancy Tribunal application may find it beneficial to seek independent legal advice. The Tenancy Services website offers comprehensive information, and individuals can also contact Community Law Centres for free legal guidance.