Wear and tear or damage?

Question from Karen updated on 25th June 2014:

Following my tenant terminating her tenancy, the agent did  the final inspection and advised of satisfaction with the condition of the property. I did an inspection the following day and noticed a chip in the top of the porcelain toilet cistern. The gardens were unweeded and lawn clippings had been put over the back fence onto the council's reserve. The garage's weatherboards are damaged with the pieces lying on the ground below the damage. I withheld the bond refund until a satisfactory response was received from the tenant. The tenant responded that she did not recall a chip out of the toilet cistern nor notice the garage weatherboard damage and said the agent had advised her just to weed eat the lawn edges under a front fence. The agent feels the first two matters are fair wear and tear and that an adjudicator would decide against me if I took it to the tribunal. What do you think?

Our expert Alan Bruce responded:

Section 40 of the Residential Tenancies Act 1986 (the Act) states that a tenant shall not “carelessly or intentionally damage the premises” and also requires a tenant to leave the premises in a “reasonably clean and reasonably tidy” condition at the end of a tenancy. As a landlord you do have to expect a general level of wear and tear on the property. If you do not think that the damage caused by the tenant is ‘general wear and tear’ and that the gardens were not left ‘reasonably clean and tidy’ you can ask the tenant to compensate you for any reasonable costs involved. If you are unable to reach an agreement with the tenant regarding the condition of the property or any costs involved at the end of the tenancy, you could apply to the Tenancy Tribunal to have the matter resolved. The Tenancy Tribunal does not set precedents, and any matter brought before the Tribunal is determined on the circumstances of each individual case. To discuss your situation further or for information regarding the Tenancy Tribunal process you can call 0800 TENANCY (0800 836 262) between 8.00am-5.30pm Monday to Friday to speak with a member of our Tenancy Advice team. You can also visit our website: www.dbh.govt.nz/tenancy-index.

The Ministry of Business, Innovation and Employment provides information and guidance on building law and compliance, services including weathertight homes, and advice for tenants and landlords.

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