Published tribunal order
Tenancy Tribunal case 4502760 — Mould & damp
Decided 26 Feb 2024 · Published 26 Feb 2024 · Application 4502760
- Mould & damp
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord’s name and identifying details.
- Jerry Tuilagi must pay [The landlord/s] $1338.18 immediately, calculated as shown in table below.
Reasons
- Only the landlord attended the hearing.
- The landlord has applied for compensation and reimbursement of the filing fee following the end of the tenancy.
- In a prior order, the Tribunal awarded damages for other items claimed. The claim was then adjourned to today, to allow the landlord to put the necessary evidence before ethe tribunal in relation to the balance of the claims, now considered below. The landlord retains bond in the sum of $862.26.
Is the tenant responsible for the damage to the premises?
- A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
- Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
- Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
- Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
- The landlord claims that the following damage was caused during the tenancy: (a) Stains, pest infestations and other damage to carpet necessitated full carpet replacement at a cost of $6213. This was covered by insurance and the landlord is claiming its excess of $700 (b) The curtains throughout the house were mouldy and had flea infestations. All curtains were replaced at a cost of $4703.50. The landlord is claiming its excess. (c) The house had to be fully repainted inside, due to many marks on the walls and areas of damage. The amount that was incurred was $9500 but the landlord claims only its excess of $700.00. (d) The landlord is claiming rent for a period of 8 weeks, being the period of time that the flea and cockroach treatment had to take place and viewings could not occur at the property. The amount of $5920 is claimed. (e) The landlord claims for the replacement of an alarm / security system which cost $1702.00 to replace, with the excess being $700.00. A Security alarm business advised the landlord that it had been deliberately damaged by the tenant due to cockroaches interfering with the wiring.
- I am not satisfied that the damage to the carpet, curtains and walls was anything other than general wear and tear to what appears from the photos to be an older house. I asked the landlord to point me to evidence of damage to the walls to demonstrate that the damage was not already there when the tenant moved in but she was unable to do so. General knocks, dents and marks to walls are wear and tear.
- Even if any of this damage could be visited on the tenant, I must take into account betterment.
- The carpet itself looked worn from the entry photos.
- The carpet was 10 to 12 years old at the outset of the tenancy. That it was old carpet in need of replacement at the beginning of the tenancy is certainly borne out by the entry photographs.
- The curtains also looked to be tired and old as well. The landlord said they were only 3 to 4 years old at the outset of the tenancy but no evidence of that was provided. The landlord said the curtains were mouldy. That there was mould in the curtains is consistent with them being older and that possibly this was a damp home.
- As for the internal painting of the house, this had last been painted 8 years prior to the outset of the tenancy.
- I find that all of the foregoing items were already old at the outset of the tenancy, and taking into account the IRD depreciation tables, clearly at the end of their lifespan.
- Subject to the below, I am simply not prepared to allow any of this alleged damage to be visited on the tenant.
- I accept that the tenant has damaged the security system and that the cost incurred to replace it was reasonable. I allow the excess claim of $700 for that item.
- In certain circumstances, where the time take to repair damage by tenants takes some time, landlords are able to also claim damages by way of lost rent, in that they are unable to rent the property out.
- I have allowed the claim for the damaged security system. I have disallowed the other claims. If the landlord chose to undertake that work then the landlord bears the cost of the time it took to do so. I accept it would have taken a few weeks to deal with the insect infestation and I allow two weeks rent to be recovered,
- The tenant must therefore pay the landlord $1480 for the lost rent claim
- Because [The landlord/s] has substantially succeeded with the claim I have reimbursed the filing fee.
- The landlord is claiming suppression and I award that also, on the basis that it has been successful.