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Residential Tenancies Act 1986

Tenancy agreements - Responsibility for damage

49B: When tenant liable

You could also call this:

“Tenants can be held responsible for damage they or their guests cause on purpose or through careless actions.”

You’re not responsible for damage to the rental property in some cases, but there are exceptions. You’re liable if you or someone you’re responsible for intentionally caused the damage or did something illegal that led to the damage.

If you or someone you’re responsible for carelessly damages the property, you might have to pay. The amount you’ll pay is limited. If the property is insured, you’ll pay the lesser of the insurance excess or four weeks’ rent. If it’s not insured, you’ll pay up to four weeks’ rent.

If you receive an income-related rent, the four weeks’ rent is based on the market rent, not what you actually pay.

You might have to pay more if your actions stop the landlord from claiming insurance. In some cases, you can fix the damage yourself instead of paying, if you and the landlord agree.

These rules also apply when you remove fixtures from the property, unless you intentionally caused the damage.

If damage is found after this law came into effect, it’s assumed to have happened after the law started unless you can prove otherwise.

When damage occurs, the landlord has to prove it’s not normal wear and tear, that it happened due to an illegal act, or that insurance won’t cover it. You have to prove you didn’t cause the damage intentionally or carelessly.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=LMS245569.

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Previous

49A: General principle, or

“Tenants are not responsible for damage to the property, except in special cases.”

Next

49C: Landlord, not insurer, to benefit from tenant liability for careless damage, or

“ The landlord gets the money if the tenant accidentally damages the property, not the insurance company. ”

Part 2 Tenancy agreements
Responsibility for damage

49BWhen tenant liable

  1. A tenant is not excused from liability or obligation by section 49A(1) if, and to the extent that,—

  2. the destruction or damage was intentionally done or caused by the tenant or by a person for whose actions the tenant is responsible under section 41 or 66L; or
    1. the destruction or damage was the result of an act or omission by the tenant or by a person for whose actions the tenant is responsible under section 41 or 66L and the act or omission occurred on or about the premises and constitutes an imprisonable offence.

      1. To the extent provided in subsection (3), the tenant is liable to the landlord for destruction of, or damage to, the premises that is caused by a careless act or omission of the tenant or of a person for whose actions the tenant is responsible under section 41 or 66L, other than an act or omission described in subsection (1).

      2. The tenant’s liability under subsection (2) is limited,—

      3. if the property is insured against the destruction or damage, to the lesser of the applicable excess under the insurance and whichever of the following is applicable:
        1. if the tenant pays an income-related rent within the meaning of section 2(1) of the Public and Community Housing Management Act 1992, the market rent within the meaning of section 2(1) of that Act for the premises for a period of 4 weeks:
          1. in any other case, the rent under the tenancy agreement for a period of 4 weeks; or
          2. otherwise, to whichever of the following is applicable:
            1. if the tenant pays an income-related rent within the meaning of section 2(1) of the Public and Community Housing Management Act 1992, the market rent within the meaning of section 2(1) of that Act for the premises for a period of 4 weeks:
              1. in any other case, the rent under the tenancy agreement for a period of 4 weeks.

              2. However,—

              3. if any insurance moneys that would otherwise have been payable because of the destruction or damage are irrecoverable because of an act or omission of the tenant or of a person for whose actions the tenant is responsible under section 41 or 66L, for the purposes of subsection (3) the property is treated as not insured against the destruction or damage (and therefore subsection (3)(b) sets out the limit of the tenant’s liability under subsection (2)); and
                1. see also clause 19 of Schedule 1AA (for other circumstances where subsection (3)(b) sets out the limit of the tenant’s liability under subsection (2), regardless of whether the property is insured against the destruction or damage).

                  1. To avoid doubt, a tenant’s liability under subsection (2) may, if the tenancy agreement so provides or the tenant and landlord so agree, be satisfied by the tenant carrying out works to make good the destruction or damage up to a value of the liability limit in subsection (3).

                  2. Unless the damage is the result of an action described in subsection (1), a tenant’s obligations under section 42(6) (removal of a fixture) to repair damage or to compensate the landlord for expenses incurred in repairing damage are limited to work of a value, or payment of an amount, up to the liability limit set out in subsection (3).

                  3. Destruction or damage of which the landlord becomes aware after this section comes into force is presumed to have occurred after this section came into force unless the tenant proves otherwise.

                  4. If any destruction of, or damage to, the premises is proved to have occurred during any tenancy to which this Act applies,—

                  5. it is for the landlord to prove—
                    1. that any damage is not fair wear and tear; and
                      1. that any destruction or damage occurred in circumstances described in subsection (1)(b); and
                        1. that any insurance moneys are irrecoverable for the reasons described in subsection (4)(a); and
                        2. it is for the tenant to prove—
                          1. that any destruction or damage was not intentionally done or caused as described in subsection (1)(a); and
                            1. that any destruction or damage was not caused by a careless act or omission described in subsection (2).

                            Notes
                            • Section 49B: inserted, on , by section 8 of the Residential Tenancies Amendment Act 2019 (2019 No 37).