In 2009 some boiling oil changed the residential renting industry in New Zealand, ending in the change of the Residential Tenancies Act in 2016.
In 2009 the case of the burnt down house rented by the Osaki family got all the way through to the Court of Appeal. The outdrawn change of the law in 2016 according to Andrew King – NZ Property Investors Association – made many people seriously consider leaving the industry for good. The changes of the of the Residential Tenancies Act mean that the tenants would not be liable for unintentional damages anymore.
Unfortunately damages happen time by time. The best way to conduct a claim for damage is to first have a look at the Osaki Matrix, which tells when the tenant is liable in case the landlord has an insurance.
In 2016 the Osaki Protocol was created that includes the main steps how a damage claim should be handled. It establishes 4 main steps to follow:
- File your tenancy tribunal application including your claim for damage. Avoid discussing whether the damage was intentional or not and avoid the topic of insurance cover with the tenant prior to the hearing.
- At the hearing you need to establish that the damage was more than fair wear and tear- so make sure you have good pretenancy condition report. You will also need to produce evidence of the value of the damage.
- Once you have presented your evidence its now the tenants turn. According to the practice direction the tenant must show that the damage was not intentional. This is going to be difficult for the tenant if they are not present at the hearing.
- If the tenant was able to show that the damage was unintentional the tenancy tribunal should then look at the landlords insurance cover.
If the landlord has insurance that does cover that sort of damage then the tenant should be exonerated and therefore should not be liable.
If the landlord does not have insurance cover then the tenant should be held liable for the damage claim.
The Osaki Protocol also warns the landlords, that they cannot and should not sue for any insurance excess anymore. The excess is seen to be the amount of risk landlords agree to accept. It also draws attention to the fact, that landlords can no longer issue a 14-day notice to remedy damage. Landlords must now file an application to the tenancy tribunal for a work order instead.
Information Retrieved from https://www.tpsportal.co.nz