Tenancy can be difficult terrain to navigate, whether you're a long-time renter or a first-time tenant. And when something gets damaged, it can be hard to know what to do - and who is required to stump up for repairs.
One common point of confusion is the concept of fair wear and tear. To state the obvious, homes are meant to be lived in, and damage is inevitable. Freshly installed faucets will, at some point, become leaky, and once pristine carpets will eventually wear out when people are trampling on them daily.
According to Tenancy Services, fair wear and tear is defined as the gradual deterioration of things that are used regularly in a property by its occupants. A tenant is not liable for damage to their rented property caused by fair wear and tear.
However, the tenant is responsible for any intentional or careless damage, says Tracy Yarrell, an associate specialising in property at the law firm Duncan Cotterill.
"When assessing whether damage is fair wear and tear, a good question to ask is: would this have happened if you were living in the property and using it for intended/normal use?" Yarrell told Newshub.
In other words, the occupants must be using the property's furnishings and appliances for their intended function. For example, punching a hole in the wall, or burn marks on the carpet, are not considered fair wear and tear as the damage was either intentional or careless.
However, the distinction between "fair" damage and "careless" damage can sometimes be murky. For example, a common factor is whether or not a tenant should have had the foresight to avoid the situation that led to the damage.
One tenant facing this predicament took to Reddit to seek advice about peeled paint in their rental property.
The tenant said that unbeknownst to them, their couch had been rubbing against the wall behind it over the last few years, gradually peeling off the paint.
"We were unaware and [were] not expecting it would happen," they said. "I've been reading the [Residential Tenancies Amendment Act 2019] and it says if the damage is not careless or intentional, then it's not liable to be paid [for] by the tenant. Would this come under that?"
Reddit users pitched in their two cents, the general consensus being that it's no use crying over scratched paint.
"It's paint. If your landlord can't apply paint and primer then they probably shouldn't even be allowed to have a model plane, let alone responsibility for a whole house," said one.
"If it's that minor requiring a bit of filler and paint, then [it's] fair wear and tear. If it's a hole or negligent, then you're up for it," another suggested.
Yarrell said in this instance, the landlord could argue the damage was negligent or caused by a lack of care.
"Careless damage is generally viewed as damage caused by negligence, lack of care, or lack of forethought," she told Newshub.
"Every case will be viewed based on the facts, but the situation with the couch is unlikely to constitute fair wear and tear.The mere definition of 'rub' implies causing damage - meaning, inter alia, to apply firm pressure to the surface of (something), using a repeated back and forth motion.
"It obviously won’t fall under 'intentional damage' but I would argue on the side of negligence/lack of care."
In this situation, Yarrell said it would be reasonable to expect the tenant to cover the cost of repairs.
Property management expert Bernard Parker agreed, telling Newshub foresight is a key factor in wear and tear predicaments. For example, the tenant could have had the foresight to place the couch in front of the wall - but not touching the wall - to prevent damage to the paint.
"Common sense usually prevails," Parker said. "If a reasonable person could foresee the possibility of damage, then the tenant possibly should have foreseen it. Placing the couch in front of the wall, but not touching it, could be argued to be a suitable precaution."
Parker said a classic example of fair wear and tear is a worn carpet, noting the damage is expected when people are occupying the property.
"Carpet wear and tear is to be expected," he said. "If it's reasonable that a certain level of wear and tear could be expected, then the Residential Tenancies Act would protect the tenant."
Conversely, a wall being damaged by a couch is not necessarily "expected" damage.
What the Residential Tenancies Amendment Act says
Under the Residential Tenancies Amendment Act 2019, tenants must inform the landlord of any damage to the property. If the tenant does not notify the landlord as soon as possible, the landlord may be able to claim some of the costs from the tenant if the damage gets worse.
Under section 49B of the Act, a tenant is liable if the destruction or damage was intentionally done or caused by the tenant, or by a person whose actions the tenant is responsible for.
The landlord can ask the tenant to repair the damage, or to stump up the cost of replacement or repair.
The tenant is also liable to the landlord if the damage is caused by a "careless act or omission".
If tenants or their guests carelessly damage a rental property, they are liable for the cost of the damage up to four weeks’ rent or the landlord’s insurance excess (if applicable), whichever is lower. Tenants on income-related rents will be liable for careless damage up to four weeks’ market rent or the insurance excess (if applicable) - whichever is lower.
If the landlord and tenant can’t agree who should pay, either can apply to the Tenancy Tribunal, but both will be required to prove their case.
Can landlords charge to change a name on the lease?
In another Reddit post, one Wellington renter complained of a real estate company attempting to charge $250 to change a name on the lease. The person said the 'name change fee' was charged to take one tenant off the lease and add another.
Although the post was met with disbelief and outrage by fellow Reddit users, Yarrell says in some cases, the fee is justified.
"There are certainly some situations when landlords or property managers can have their costs reimbursed by the tenant. For example, if one tenant wants to leave a group tenancy and be replaced by a new tenant, if the tenant wants to sublet the property, or if a tenant wants to end a fixed term tenancy early," she explained.
"As these changes are at the tenant’s request, the landlord or property manager can have their costs reimbursed, provided they are reasonable.
"If you consider the case of a tenant being replaced by another, the tenant needs to understand the landlord/property manager will need to go through the usual vetting process (which will include obtaining references, credit and criminal checks) and get landlord’s approval for the new tenant, complete paperwork and also arrange for the change of names on the bond. It’s certainly not a five-minute job.
"My understanding is that most property managers will disclose details of these costs at the commencement of a tenancy."
According to Tenancy Services, landlords can charge the tenant for expenses incurred when assigning a tenancy.
"Landlords are entitled to recover reasonable expenses that came up during the assignment process," it says.
"Even if the tenant finds their own replacement, the landlord can still require the tenant to pay any reasonable costs incurred. They must first provide the tenant with an invoice that has a breakdown of the costs."
