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tenancy

What to do if a window gets smashed

Key Takeaway

When a window is smashed in a New Zealand residential tenancy, the tenant must promptly notify the landlord. Tenants are liable for damage they cause, but liability for careless damage is capped at four weeks' rent or the landlord's insurance excess, whichever is lower. Landlords are responsible for arranging repairs and maintaining the property.

Smashed Windows in Residential Tenancies: Rules, Rights, and Obligations

In New Zealand residential tenancies, the breaking of a window involves specific legal responsibilities for both the tenant and the landlord under the Residential Tenancies Act 1986 (RTA), which is the primary legislation governing residential tenancy agreements.

Tenant's Obligations Regarding Damage

Tenants have several key obligations regarding the condition of the rental premises:

  • Duty Not to Cause Damage: A tenant has a general obligation not to damage, and to prevent any other person from damaging, the premises [Source: Residential Tenancies Act 1986, s 40(1)(c)].
  • Duty to Notify: A tenant must promptly notify the landlord of any damage to the premises or any need for repairs [Source: Residential Tenancies Act 1986, s 40(1)(d)].
  • Distinction: Careless vs. Intentional Damage: The RTA distinguishes between careless damage (damage caused by a tenant's actions or inactions without intent to cause harm) and intentional damage (damage caused deliberately by a tenant or someone for whom they are responsible).
  • Tenant's Financial Liability for Damage: A tenant is liable for the cost of repairs for any damage to the premises that is intentional or that results from an act or omission of the tenant or a person for whom the tenant is responsible, that constitutes an imprisonable offence [Source: Residential Tenancies Act 1986, s 49B(1)(a)-(b)]. For damage that is not intentional and does not arise from an imprisonable offence (i.e., careless damage), a tenant's financial liability is limited. The maximum amount a tenant can be ordered to pay for such damage is either the landlord's insurance excess (the amount of money a policyholder must pay towards a claim before the insurance company pays the rest), if the landlord has insurance, or four weeks' rent, whichever amount is lower [Source: Residential Tenancies Act 1986, s 49B(2)]. This cap does not apply to intentional damage or damage resulting from an imprisonable offence [Source: Residential Tenancies Act 1986, s 49B(1)]. Landlords must also inform tenants if the premises are insured and disclose the excess amount [Source: Residential Tenancies Act 1986, s 45(1)(f)].

Landlord's Obligations for Maintenance and Repair

Landlords also have specific duties regarding the upkeep of the property:

  • Duty to Maintain: Landlords are required to provide the premises in a reasonable state of repair and to maintain the premises in a reasonable state of repair during the tenancy [Source: Residential Tenancies Act 1986, s 45(1)(a)]. This includes ensuring that windows are in good working order and structurally sound.
  • Responsibility for Repairs: The landlord is responsible for arranging repairs to the premises, even if the tenant is ultimately liable for the cost of the damage [Source: Residential Tenancies Act 1986, s 45(1)(a)].

The Process: Reporting and Repairing Smashed Windows

If a window is smashed, a specific process is generally followed:

  1. Tenant Notifies Landlord: The tenant's first step is to promptly notify the landlord of the damage [Source: Residential Tenancies Act 1986, s 40(1)(d)]. This notification should ideally be in writing, detailing the nature and extent of the damage.
  2. Landlord Arranges Repairs: Upon notification, the landlord is responsible for assessing the damage and arranging for the necessary repairs to restore the premises to a reasonable state of repair [Source: Residential Tenancies Act 1986, s 45(1)(a)].
  3. Determining Financial Responsibility: The determination of who bears the financial cost depends on whether the damage was due to fair wear and tear, careless damage, or intentional damage, as outlined in the tenant's liability sections [Source: Residential Tenancies Act 1986, s 49B].

Understanding "Fair Wear and Tear"

The RTA differentiates between damage and fair wear and tear (deterioration that occurs through the normal use of a property over time). Landlords are responsible for repairing damage caused by fair wear and tear, and tenants are not liable for it [Source: Residential Tenancies Act 1986, s 40(1)(c), s 45(1)(a)]. A smashed window is generally considered damage, not fair wear and tear, unless it resulted from inherent structural failure or extreme weather unrelated to human action.

Dispute Resolution through the Tenancy Tribunal

If there is a disagreement about liability, the cost of repairs, or the nature of the damage (e.g., whether it was careless or intentional), either the landlord or the tenant can apply to the Tenancy Tribunal for a ruling [Source: Residential Tenancies Act 1986, s 77(1)(b)]. The Tenancy Tribunal is a judicial body that resolves disputes between landlords and tenants. The Tribunal has the power to order payment for repairs or compensation for loss [Source: Residential Tenancies Act 1986, s 78].

When to Seek Independent Legal Advice

Individuals seeking clarification on their specific rights and obligations regarding a smashed window, or any other aspect of their tenancy agreement, should consider obtaining independent legal advice. This applies particularly when disagreements arise over liability, repair costs, or the interpretation of careless versus intentional damage. Information and free legal assistance are available from various sources, including Tenancy Services and Community Law Centres. Community Law Centres provide free legal services to those who qualify Community Law Centres.

Key Resources