Published tribunal order
Tenancy Tribunal case 4550542 — Rent arrears at 22 Riddlers Crescent, Petone, Lower Hutt 5012
Decided 26 Oct 2023 · Published 26 Oct 2023 · Application 4550542
Landlord favoured
- Rent arrears
Order
- Jeremy Brian Gorinski must pay Mahesh Bindra $2,175.00 immediately, calculated as shown in the table below.
- All other claims are dismissed.
- No suppression orders apply around publication of this decision.
Reasons
- Both parties attended the hearing.
- The landlord has applied for rent arrears, compensation, and reimbursement of the filing fee following the end of the tenancy.
How much is owed for rent?
- The parties accepted on the evidence that the tenancy started on 24 September 2022 and ended on 18 November 2022. The end date of the tenancy is the date the landlord changed the locks at the premises as he believed that the tenant had abandoned the premises. This turned out not to be the case. While the tenant had shifted some of his belongings, he had not given formal notice to end the tenancy and had not removed all his belongings from the premises. Prior to this the landlord had issued a 63-day notice to terminate the tenancy which expired in early January 2023. As discussed at the hearing, in these circumstances, a landlord is not entitled to change the locks and take possession of the premises unless the tenant consents. Otherwise, the landlord must apply to the Tribunal to terminate the tenancy.
- Given that the landlord took possession of the premises, he is not entitled to rent beyond the possession date. Both parties provided records to show the rent owed and payments made by the tenant. In a previous decision of the Tribunal dated 29 March 2023 under application 4441098, the landlord was ordered to repay the bond of $2,800 to the tenant. The landlord has only refunded $700. The balance bond owed as well as other payments made by the tenant since the tenancy ended have been taken into account. The amount owing at the end of the tenancy taking all payments into account has been proved.
Did the tenant comply with their obligations at the end of the tenancy?
Cleaning, rubbish removal and replacement of items--obligations
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986 (RTA). The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) RTA. The tenant must also replace standard light bulbs. Tenant responsibility for damage
- 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 caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) 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. Claims
- The landlord made various claims for damage to the premises and presented photos and a repairs invoice for a damaged French door window; missing door handle; damaged spa pool, stained carpet, and holes in walls. In addition, he made claims for missing curtains, lightbulbs, and a broken garage door for which no photos nor invoices for repairs/replacement were provided. The claims total $7,250.
- The tenant disputed the claims and advised that there was no pre-tenancy inspection completed. Therefore, the landlord is unable to prove the condition of the premises and any chattels provided at the start of the tenancy. It follows that he cannot prove the damage occurred during the tenancy.
- I am satisfied that there is insufficient evidence to prove the claims in the absence of a pre-tenancy inspection report and/or photos. For that reason, these claims must be dismissed
- I decline the landlord’s request for suppression orders, and I decline awarding the filing fee on the application given that the landlord has not substantially succeeded with his claims.