Spa damage liability
Question from Ana updated on 16th October 2017:
We believe our tenant forgot to close the locks on the cover of the spa pool and heavy wind blew it away leaving two of the locks broken. It was in good condition when the tenant moved in and she signed the landlord checklist to state that nothing was wrong. But now she is saying that it was broken because of its age, weight, and sun damage.
I don’t have a photo of the spa as it was when she moved in. But I do have the council’s periodic inspection reports and they ensured the spa cover is secure and that the spa poses no danger for children.
Our tenant does not want to repair it because of the current law stating that if a landlord has insurance, the tenant does not have to pay for repair of damage nor the excess of insurance. The house is insured but its contents are not insured which means that the spa is also not insured. So does my tenant have to pay for the cover repair?
Our expert Myles Noble responded:
You are correct that under the recent Holler vs Osaki decision landlords are prevented from seeking recovery against tenants where the tenant has been negligent. However, recent decisions by the Tenancy Tribunal have shown some flexibility in this approach where the landlord can clearly identify negligence by the tenant.
Additionally, just last week a new Bill, The Residential Tenancies Amendment Bill (No.2), was introduced into Parliament by Building and Construction Minister Nick Smith. If it becomes law it could see tenants being liable for their landlords’ insurance excess if they damage their rental property due to carelessness.
Myles Noble is head of claims and earthquake response for Crombie Lockwood. He also holds various advisory board positions in the insurance industry.