Tenancy dispute over 'fair wear and tear'

B.Abraham asks:
(updated on Monday, November 20th 2006)

I am a tenant and we moved into a property where the landlord painted the peeling walls with another coat of paint. After staying one and half years, the paint has started peeling again, wherever we have a chair that touched the wall or when a bin accidently touched the walls. Now we want to move out and the landlord wants to charge us to redo the painting again. Is it right on her part to take advantage of us because she has the bond money? Moreover she has a good reputation of exhorting money some way or another from the previous tenants as well who vacated. Please advise.

Our Experts Answer:

As a general rule, tenants are not liable for damage to their rented property caused by “fair wear and tear”, which can be described as any damage caused to a property that has come about as a result of the fair or reasonable use of the property for residential purposes. The Residential Tenancies Act 1986 does not refer to fair wear and tear, but this principle is well established by case law.
If a landlord is seeking compensation for damage caused to the property, and the tenant believes this damage was caused as a result of ‘fair wear and tear’, the tenant may wish to contest the landlord’s claim against the bond. The tenant can do this by making an application to the Tenancy Tribunal disputing the landlord’s bond claim (if the landlord is claiming for damage caused by ‘fair wear and tear’ against the bond). This type of dispute may be resolved through mediation, the first step in the dispute resolution process, or may proceed to a Tribunal hearing. To succeed in a defence of fair wear and tear, a tenant should be able to show that the damage at issue was not intentional or careless; and that it occurred as a normal incident of the tenant’s occupation of the premises. For detailed information and advice about bond claims and the Tenancy Tribunal application process, free phone 0800 TENANCY (83 62 62) and speak to one of our advisers. Alternatively, you can download application forms from our website: www.dbh.govt.nz/tenancy

The Department of Building and Housing provides information and guidance on building law and compliance, services including weathertight homes, and advice for tenants and landlords.

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