Published tribunal order
Tenancy Tribunal case 4595217 — Property damage at 51A Sillary Street, Hamilton East, Hamilton 3216
Decided 26 Sept 2023 · Published 26 Sept 2023 · Application 4595217
- Property damage
- Cleanliness
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the Landlord’s name and identifying details.
- The Bond Centre is to pay the bond of $2,320.00 ([Bond number suppressed]) to [The landlord/s] immediately. 3.
Reasons
- [The landlord’s representative] appeared for the landlord. There was no appearance by the tenant.
- The tenancy was terminated by the Tribunal due to rent arrears on 26 May 2023. On 04 June 2023 the landlord lodged a claim for damages, refund of the bond, and reimbursement of filing fee.
Did the tenant comply with their obligations at the end of the tenancy?
- The landlord claims that the tenant failed to leave to property reasonably clean and tidy, remove all rubbish, and return the keys.
- 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) of the Act.
- The property consists of four bedrooms, kitchen / lounge / dining room, family room, and two bathrooms. The landlord has produced photographs of the property taken at the commencement and end of the tenancy. [The landlord’s representative] also conducted the end of tenancy inspection. After hearing from [The landlord’s representative] and hearing the photographs, I am satisfied that the tenant has failed to leave the property reasonably clean and tidy, including the grounds, and failed to remove all rubbish.
- The landlord is claiming $1,184.50 for cleaning, $276.00 for rubbish removal, and $316.25 for ground and lawn maintenance. On the evidence I am satisfied that the amount claimed for rubbish removal and lawn and ground maintenance is reasonable. However, on the evidence, I am not satisfied that the claim for cleaning is fully justified, and I award $600.00 for cleaning.
- I am satisfied that the tenant failed to return the keys provided at the commencement of the tenancy. The landlord is awarded the $274.67 claimed to re - barrel the locks and have new keys cut.
Is the tenant responsible for the damage to the premises?
- The landlord claims that the tenant is responsible for damage to the carpet in the lounge, hallway, and stairwell, as wells as walls throughout the property, the door in the main bedroom, and the vinyl flooring and vanity in the downstairs bathroom. The landlord is claiming $2,020.44 to repair walls and the door, $2,175.12 to replace the damaged carpet, $515.09 to replace the vinyl flooring, and $859.06 to replace the vanity.
- To succeed with a claim 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, and animals, at the premises with their permission. See sections 40(2)(a), 41 and 49B of the Act.
- Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
- 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, which in this case is $400.00 per claim, or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) of the Act.
- 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) of the Act. 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) of the Act.
- 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) of the Act.
- 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. Carpet
- The landlord has produced photographs taken at the commencement and end of the tenancy. The end of tenancy photographs show damage to the carpet in the lounge, hallway, and stairs.
- [The landlord’s representative] states that the tenant kept a large dog at the property without the consent of the landlord. A 14-day notice has been produced, requiring the tenant to remove the dog. [The landlord’s representative] states that the property is not fenced, and the dog was primarily housed indoors. [The landlord’s representative] states that the property smelt strongly of urine.
- The landlord’s photographs showing heavy staining on the lounge and stairwell carpets, along with other damage to the hallway. It appears that attempts made by the landlord to remove the stains were unsuccessful. The carpet layers invoice states that the carpet has been damaged by bleaching, likely from animal urine. [The landlord’s representative] believes the damage is consistent with the dog repeatedly soiling the same areas, an action the tenant would have known would cause damage.
- I am satisfied that the damage has occurred during the tenancy and is more than fair wear and tear. After hearing from [The landlord’s representative] and considering the photographs, I accept the landlord’s claim the tenant has allowed a situation to continue knowing that damage was a certainty. Based on this, the tenant is liable for the full amount claimed.
- Any damages awarded must be for a loss that naturally flows from the breach and be reasonable. The Tribunal must also consider betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In determining depreciation, the Tribunal will take into account the age of the item concerned and its likely useful lifespan. The carpet in the affected areas was new at the start of the tenancy and in a good condition. I make no deduction for depreciation or betterment. Vinyl flooring and vanity
- [The landlord’s representative] states that the dog was also kept in the bathroom. The landlord has produced photographs of the downstairs bathroom which show that the vinyl flooring has been severely damaged, leaving only remnants attached to the floor. A corner of the bathroom vanity has also been chewed away. [The landlord’s representative] suggests by keeping the dog in such a confined space it would have been known to the tenant that damage was a certainty.
- Based on the evidence, I accept this submission. I am satisfied that the damage occurred during the tenancy, was more than fair wear and tear, and more likely than not intentional. The flooring in the bathroom was approximately 20 years old at the commencement of the tenancy, and in a reasonable condition. I deduct 20% for depreciation, and for the vinyl flooring award $412.07. As for the vanity, it was also at least twenty years old at the commencement of the tenancy and in a reasonable condition. I deduct 25% for depreciation and award $644.90. Walls and door
- The landlord has produced photographs showing holes in the walls in the main bedroom, hallway, and lounge. The damage was not present at the commencement of the tenancy. [The landlord’s representative] states that the walls had been newly painted. The holes have been roughly patched but not sanded and painted. [The landlord’s representative] has also produced a photograph of the door in the main bedroom which has a large hole in it.
- I am satisfied that the damage has occurred during the tenancy and is more than fair wear and tear. The tenant has not disproved liability. The damage to the door is consistent with having been caused by an intentional act. I make no deduction for betterment and depreciation, as stated the walls and doors had been freshly painted at the commencement of the tenancy. Costs
- As [The landlord/s] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
- The landlord has been substantially successful, seeks, and is granted name suppression. See section 95A of the Act.