Tenantcheck Insights · Case study
Tenancy Tribunal case 5416151 — Property damage
Decided 18 Mar 2026 · Published 18 Mar 2026 · Application 5416151
- Property damage
Party names are redacted in the official published order. This page summarises the dispute only — not individual identities.
At a glance
Key facts from the published tribunal order.
Adjudicator
J Setefano
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
No individual claim amounts were reconciled for this order. View the official Ministry of Justice PDF for full detail.
Order
- The Tribunal orders suppression of the Tenants’ names and identifying details.
- The application is dismissed.
Reasons
- This is the Tribunal’s decision on a landlord’s application for compensation relating to cracking in a kitchen benchtop. The landlord seeks $1,000, being the insurance excess payable to repair the benchtop. The tenants dispute liability.
- The tenancy commenced on 30 August 2024. The property was newly built and new at the start of the tenancy. Background
- The landlord says that cracking or stress marks were first observed during a routine inspection in May 2025. The landlord approached the developer, who advised that the damage appeared consistent with heat damage caused by hot cookware placed on the benchtop. The landlord says the owner now wishes to proceed through insurance to avoid further deterioration.
- The tenants accept that cracking or stress marks appeared during the tenancy but denies responsibility. The tenant says they took care not to place hot pots directly on the benchtop, used pot stands, and later used boards after discussions with the property manager. The tenant says this amounted to normal use. The tenants also say that when the cracking was first noticed in April 2025, they notified the landlord. After speaking with a friend in the building industry, the tenants believe the cracking is more likely due to a material fault or installation issue and says the benchtop should be more durable. The Parties’ Positions
- The landlord’s position is that the benchtop was new at the commencement of the tenancy, that cracking was not present initially, and that advice from the developer indicates the damage was caused by heat stress from cookware used by the tenant. The landlord says this amounts to careless damage and that the tenants should be responsible for the insurance excess.
- The tenants’ position is that they exercised reasonable care, used protective measures, and did not misuse the benchtop. The tenants say the damage occurred despite normal use and believe the cause is either a defect in the stone material or an issue with the installation of the benchtop or stovetop. Issues to Be Determined
- The issues for determination are whether the landlord has established, on the balance of probabilities, that the cracking constitutes damage for which the tenants are legally responsible, whether the damage was caused by the tenants’ careless actions rather than fair wear and tear or an inherent defect, and whether the amount claimed is recoverable under the Act. Relevant Law
- Under section 40(2)(a) of the Residential Tenancies Act 1986, a tenant must not intentionally or carelessly damage the premises. Under section 40(3), a tenant is not liable for damage that is fair wear and tear.
- Where damage is careless, section 49A limits a tenant’s liability to the lesser of the landlord’s insurance excess or the cost of repair.
- The landlord bears the burden of proof. The Tribunal must be satisfied, on the balance of probabilities, that the tenant caused the damage and that it was not the result of fair wear and tear, an inherent defect, or installation issues. Analysis
- I accept that the property and benchtop were new at the start of the tenancy and that cracking was first observed during the tenancy. However, the fact that damage appears during a tenancy does not, of itself, establish tenant liability.
- The landlord relies on advice received from the developer that the cracking appeared consistent with heat damage caused by cookware. However, no written assessment, report, or evidence of the developer’s qualifications or methodology has been provided. It is unclear whether the developer inspected the benchtop in person, conducted any testing, or ruled out alternative causes such as thermal expansion, material fault, or installation issues.
- The tenants’ evidence that they used pot stands and boards, and took steps to avoid placing hot items directly on the benchtop, was not challenged. The tenant also says they notified the landlord when the cracking was first noticed in April 2025. That evidence is consistent with a tenant attempting to act reasonably and transparently.
- I also take into account that the landlord acknowledged a desire to proceed through insurance “to avoid further damage”, rather than because liability was clearly established. This suggests an element of uncertainty about causation.
- Stone benchtops, while durable, are known to be susceptible to cracking due to a range of factors, including heat stress, installation tolerances, substrate movement, and material defects. Where causation is technical and disputed, the Tribunal expects clear, independent evidence. Assertions, even from a developer, without supporting documentation or expert explanation, are insufficient to discharge the burden of proof.
- On the evidence before me, I am not satisfied that the landlord has established, on the balance of probabilities, that the cracking was caused by careless use by the tenant rather than by an inherent material or installation issue. The tenants’ explanation of normal use is plausible and has not been displaced by reliable evidence to the contrary. Conclusion
- While I accept that cracking to the benchtop occurred during the tenancy, the landlord has not proved that the damage was caused by the tenants’ careless actions or that it falls outside fair wear and tear or inherent defect considerations. The landlord has therefore not met the burden of proof required under the Residential Tenancies Act 1986.
- The landlord’s application for compensation (insurance excess) is declined. Suppression Order
- As the landlord has failed to establish the compensation claim, the tenants have been successful in defending the application. In these circumstances, I am satisfied that it is appropriate to grant name suppression in respect of the tenants pursuant to section 95 of the RTA.