What was the outcome of Tenancy Tribunal case 4599209?

The tribunal order states: Andy John Clemance is to pay Richard Phillip Burgess and Penelope Burgess

How much money was awarded in case 4599209?

Filing Fee: $20.44 awarded to landlord; Property Damage: $471.96 awarded to landlord

What type of tenancy dispute was case 4599209?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4599209?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9922679-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4599209?

The tribunal order states: Andy John Clemance is to pay Richard Phillip Burgess and Penelope Burgess

How much money was awarded in case 4599209?

Filing Fee: $20.44 awarded to landlord; Property Damage: $471.96 awarded to landlord

What type of tenancy dispute was case 4599209?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4599209?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9922679-Tribunal_Order.pdf.

10A Chadwick Road, Greerton, Tauranga 3112 Tenancy Tribunal Case 4599209 — Property damage

Claims and awards in Tenancy Tribunal application 4599209 — net $492.40 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Damage to kitchen cabinets 20	$471.96	Damage to kitchen cabinets 20
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$492.40
Bond	$600.00
Total payable by Tenant to Landlord	$492.40

Order

Andy John Clemance is to pay Richard Phillip Burgess and Penelope Burgess $492.40 from the bond, calculated as shown in table below:
The Bond Centre is to pay the bond of $600.00 (6397379-001) immediately apportioned as follows: Richard Phillip Burgess and Penelope Burgess: $492.40 Andy John Clemance: $107.60

Reasons

Both parties attended the hearing.
The landlords have applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

Is the tenant responsible for the damage to the premises?

The landlords claim compensation of $2,359.80 for damage to kitchen cabinet doors and drawer fronts.
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 (s 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 (s 49B(3)(a) RTA).

Did damage occur during the tenancy that is more than fair wear and tear?

The pre-tenancy property inspection report states that the kitchen was in good condition and the cupboards were “all opening”. A letter from the previous tenant says there was no damage to the premises.
The landlords provided photographs of damage to the underside of kitchen cabinet doors and drawers, and damage low down on the corner of the breakfast bar. The tenant says the photos do not represent the condition of the property when he left. However, I accept the landlords’ evidence that they were taken soon after the tenant’s cleaners finished cleaning the unit.
Based on the evidence presented, I find that the damage occurred during the tenancy and is more than fair wear and tear.

Has the tenant disproved carelessness?

The landlords believe that the damage was caused when the tenant injured himself and was using a wheelchair and then a ‘walker’ for several months. The tenant says the walker had rubber wheels and the wheelchair had plastic caps to prevent damage.
The location of the damage is consistent with it being caused by a wheelchair. The landlords say the insurance assessor located 12 areas of damage, which is confirmed by a report provided. Although some areas are more obvious than others, I find that the tenant should have noticed that damage was occurring and taken steps to prevent further damage. Therefore, he has failed to disprove carelessness.

Is the amount claimed proved?

The landlords’ insurer has effectively declined the claim by stating that an excess of $500.00 would be applied to each of the 12 areas of damage identified, making a claim uneconomic. Because the amount claimed is less than the combined total of excesses, the usual limitation on liability does not apply.
However, given the age of the cabinetry, the Tribunal must take depreciation and betterment into account. The landlords say the unit was completed about 30 years ago but has only been rented for about 22 years. They say the doors and drawer fronts should have lasted at least another 10 years. The tenant says other tenants have used wheelchairs and walkers and that he is being held responsible for the cumulative effect of damage caused over the years. The landlords acknowledge that one previous tenant used a walker for about 3 months.
There is limited information about the expected lifespan of kitchen cabinetry. There is no specific category in the IRD depreciation guidelines. The closest is a 15-year lifespan for fitted furniture. None of the categories in the guideline for residential rentals exceed 25 years, so that is a useful starting point.
Depreciation is not an exact science and should take into account the actual condition of the item in question at the start of the tenancy. In this case, although the doors and drawer fronts were near the end of their theoretical lifespan, I accept that they would have likely lasted longer than the balance years based on a mathematical calculation. Based on these considerations, a contribution of 20% towards the replacement cost is reasonable.
The landlords have not had the repair work completed, and they advised that they may well upgrade the unit and live in it themselves. The fact that the work has not been done, and may not be done in the way covered by the repair quote, does not necessarily disqualify a landlord from receiving compensation. In many cases, they can choose not to repair the damaged item and instead put the compensation towards other purposes. Filing fee and bond
Because the landlords have succeeded in principle, if not amount, I have reimbursed the filing fee.
The amount awarded will be deducted from the bond and the balance paid to the tenant. J P Smith 07 February 2024

Claims and awards in Tenancy Tribunal application 4599209 — net $492.40 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Damage to kitchen cabinets 20	$471.96	Damage to kitchen cabinets 20
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$492.40
Bond	$600.00
Total payable by Tenant to Landlord	$492.40

Order

Andy John Clemance is to pay Richard Phillip Burgess and Penelope Burgess $492.40 from the bond, calculated as shown in table below:
The Bond Centre is to pay the bond of $600.00 (6397379-001) immediately apportioned as follows: Richard Phillip Burgess and Penelope Burgess: $492.40 Andy John Clemance: $107.60

Reasons

Both parties attended the hearing.
The landlords have applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

Is the tenant responsible for the damage to the premises?

The landlords claim compensation of $2,359.80 for damage to kitchen cabinet doors and drawer fronts.
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 (s 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 (s 49B(3)(a) RTA).

Did damage occur during the tenancy that is more than fair wear and tear?

The pre-tenancy property inspection report states that the kitchen was in good condition and the cupboards were “all opening”. A letter from the previous tenant says there was no damage to the premises.
The landlords provided photographs of damage to the underside of kitchen cabinet doors and drawers, and damage low down on the corner of the breakfast bar. The tenant says the photos do not represent the condition of the property when he left. However, I accept the landlords’ evidence that they were taken soon after the tenant’s cleaners finished cleaning the unit.
Based on the evidence presented, I find that the damage occurred during the tenancy and is more than fair wear and tear.

Has the tenant disproved carelessness?

The landlords believe that the damage was caused when the tenant injured himself and was using a wheelchair and then a ‘walker’ for several months. The tenant says the walker had rubber wheels and the wheelchair had plastic caps to prevent damage.
The location of the damage is consistent with it being caused by a wheelchair. The landlords say the insurance assessor located 12 areas of damage, which is confirmed by a report provided. Although some areas are more obvious than others, I find that the tenant should have noticed that damage was occurring and taken steps to prevent further damage. Therefore, he has failed to disprove carelessness.

Is the amount claimed proved?

The landlords’ insurer has effectively declined the claim by stating that an excess of $500.00 would be applied to each of the 12 areas of damage identified, making a claim uneconomic. Because the amount claimed is less than the combined total of excesses, the usual limitation on liability does not apply.
However, given the age of the cabinetry, the Tribunal must take depreciation and betterment into account. The landlords say the unit was completed about 30 years ago but has only been rented for about 22 years. They say the doors and drawer fronts should have lasted at least another 10 years. The tenant says other tenants have used wheelchairs and walkers and that he is being held responsible for the cumulative effect of damage caused over the years. The landlords acknowledge that one previous tenant used a walker for about 3 months.
There is limited information about the expected lifespan of kitchen cabinetry. There is no specific category in the IRD depreciation guidelines. The closest is a 15-year lifespan for fitted furniture. None of the categories in the guideline for residential rentals exceed 25 years, so that is a useful starting point.
Depreciation is not an exact science and should take into account the actual condition of the item in question at the start of the tenancy. In this case, although the doors and drawer fronts were near the end of their theoretical lifespan, I accept that they would have likely lasted longer than the balance years based on a mathematical calculation. Based on these considerations, a contribution of 20% towards the replacement cost is reasonable.
The landlords have not had the repair work completed, and they advised that they may well upgrade the unit and live in it themselves. The fact that the work has not been done, and may not be done in the way covered by the repair quote, does not necessarily disqualify a landlord from receiving compensation. In many cases, they can choose not to repair the damaged item and instead put the compensation towards other purposes. Filing fee and bond
Because the landlords have succeeded in principle, if not amount, I have reimbursed the filing fee.
The amount awarded will be deducted from the bond and the balance paid to the tenant. J P Smith 07 February 2024

Tenancy Tribunal case 4599209 — Property damage at 10A Chadwick Road, Greerton, Tauranga 3112

At a glance

Tenancy Tribunal case 4599209 — Property damage at 10A Chadwick Road, Greerton, Tauranga 3112

At a glance

Award balance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Did damage occur during the tenancy that is more than fair wear and tear?

Has the tenant disproved carelessness?

Is the amount claimed proved?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Did damage occur during the tenancy that is more than fair wear and tear?

Has the tenant disproved carelessness?

Is the amount claimed proved?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions