With the ruling in favour of the tenant in the Osaki case, landlords have since been wondering what constitutes fair wear and tear within their rentals. There is a multitude of things to consider, both in the definition of fair wear and tear, and whether occurring damage is due to intentional or careless damage by the tenant. Today we’ll look at the definition of what wear and tear is, plus the implications the Osaki case have for landlords.
What is Fair Wear and Tear in a Rental Property?
According to Tenancy Services, fair wear and tear of things within a property occurs gradually over time with normal use. This includes things such as carpet becoming threadbare in areas of high traffic, cupboard door catches no longer keeping doors closed or washes in the bathroom tap causing the tap to leak.
However, if the item is being used in a manner it was not designed for, that would not be accepted as normal usage. For instance, if the tenant was using an oven to heat a room and not cook, then an element burnt out, this is not acceptable wear and tear. But if a tenant delibrately damages your property or is careless and causes damage, then this is not considered wear and tear.
Understanding Who is Liable If Fair Wear and Tear Isn’t the Cause
The Holler & Rouse v Osaki case (2016) NZCA 130 has gotten landlords throughout the country concerned. The ruling found in favour of the tenant who left a pot of oil unattended on the stove. The tenant was deemed not liable for the cost of the damage, forcing the landlord’s insurer to pay for the repairs.
Since then, many tenants have not been found liable for other damage which may be seen as negligent. This has understandably worried landlords and the Tenancy Tribunal has since released a Practice Note which details which party is liable for damage to a rental property. It says:
- A landlord can apply to the Tenancy Tribunal if both they and the tenant cannot agree who is liable for the damage.
- The Tribunal will decide if the damage is intentional and will hold the tenant liable if proved so.
- If the damage is caused by carelessness, then the tenant is not liable if the landlord’s insurance will cover the cost of repairs. The tenant’s damage must not be the result of a criminal offence though.
You can read a full copy of the Practice Note on the Tribunal’s website. These events make it even more important to have regular and thorough inspections of your rental, including taking of photographic evidence. Our Auckland and North Shore property management team are more than happy to undertake these on your behalf. In this case our Full Rental Property Management Servicewould work well, but we are happy to talk property management alternatives to this with you. Get in touch with our team today and let’s work together to protect your property interests.
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