Published tribunal order
Tenancy Tribunal case 4604693 — Property damage
Decided 8 Oct 2024 · Published 8 Oct 2024 · Application 4604693
- Property damage
Party names are redacted in the official published order.
Order
- Liliani Minerva Fangupo and Viki Walter Fangupo must pay [The landlord/s] $5,829.14 immediately, calculated as shown in the table below.
- This order incorporates the Tribunal order made on 31 May 2024 under this application (number 4604693).
- All other claims are dismissed.
Reasons
- Both parties attended the hearing, with [The tenant/s representative/s] appearing for the landlord.
- This tenancy began on 18 April 2021 and ended on 6 December 2023.
- The landlord claims compensation following the end of the tenancy. This hearing is a continuation of an earlier hearing, following which the Tribunal issued an order awarding compensation to the landlord for cleaning, pest control, rubbish removal, lock/key replacement, and replacement of carpet. The total award was $4,536.20, of which $4,400.00 was paid from the bond to the landlord. An additional amount of $136.20 was payable by the tenants, which the landlord is yet to receive.
- The balance of the landlord’s claim was considered at this hearing, which was adjourned part-heard, so the landlord could provide the insurance assessor’s report. The tenants were given additional time to comment on this report and the hearing closed.
- In the order following the second hearing it was noted that while the landlord had submitted a number of invoices, the matters to be determined were as follows: a. Wall damage: 6 bedrooms, hallway and stairway, kitchen, lounge and garage. b. Door damage c. Damage to the glass cooktop d. Curtain rod replacement and installation in bedroom 6 e. Re-attachment of the heated towel rail General principles regarding responsibility for damage
- In this decision, the balance of the landlord’s claims for compensation for damage will be considered. As previously noted, where a landlord claims compensation for damage, the 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 of the RTA.
- Fair wear and tear is damage caused as a result of normal, expected everyday use. Often this is the result of a gradual deterioration over time.
- Damage is intentional where the damage is done on purpose (the person intends to cause damage and takes the necessary steps to achieve that purpose), or where a person allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
- Careless damage is damage that is caused by an inadvertent lack of reasonable care. Careless damage is limited to the amount of the landlord’s insurance excess (if covered), or four weeks rent, whichever is the lesser.
- Accidental damage, where there is no tenant liability, is damage that is greater than fair wear and tear, but could not have been reasonably prevented.
- Where the damage is careless, and occurs after 27 August 2019, section 49B of the RTA applies. 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) of the 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) of the 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) of the RTA.
- In this case the landlord is insured for tenant damage. The insurance assessor’s report confirms that the insurance excess is $550.00. The rent for the premises is $1,100.00 per week. Analysis
- This is a 6 bedroom home, and the landlord has claimed damage to walls in each bedroom, hall and stairs, kitchen, lounge and garage. The landlord also claims damage to doors, a glass cooktop, curtain rod and heated towel rail. The landlord relies on photographic and documentary evidence. The tenants have provided oral evidence in response. The insurance assessor’s report provides relevant photographic evidence concerning the damage, its likely cause, and whether the damage would be covered under the owner’s insurance policy. Having considered the whole of the evidence and noting the submissions of both parties, I make the following findings.
- In relation to the wall damage, this consists of drawings on walls, attributed to the tenants’ children, holes in the wall, marks and other damage. Most of this damage is likely to be careless or intentional, for which the tenants will be liable. The tenants will not be liable for damage due to fair wear and tear, or accidental damage.
- The question of whether a tenant can be held liable where the damage was caused by a child was considered in the District Court decision of Walmsley v Taylor [2001] DCR 711, and in the Tribunal decisions in Housing New Zealand Corp v Driver [2011] NZTT North Shore 1811 and Harrison v McCraken TT Hamilton TT891/99, 9 July 1999. In these cases, an important factor in determining whether the tenant had breached a duty of care, and was therefore liable, related to the level of parental supervision exercised by the tenant.
- In this case, the tenants have explained that their children had drawn on the walls in various rooms in the house (for example, their three year old child had drawn on the walls in bedroom 1). The damage caused by the children was the result of the tenants breaching a duty of care relating to the supervision of their children. Therefore, this can be regarded as careless damage. The landlord also notes there was damage from the removal of pictures. In other areas, the tenants have tried to repair the damage themselves, for example, in bedroom 2. The insurance assessor’s report indicates the wall damage is the result of careless damage.
- The insurance assessor has taken the approach that for each area of damage identified, the amount was limited to $3,000.00 per event, less the applicable excess of $550.00 (for each room). In view of the finding that most of the damage is either intentional or careless, the tenants will be liable for the insurance excess. Where the cost of the repair is less than the excess, then the tenants will be liable for the repair cost only. At the hearing, the landlord indicated that the wall damage was not covered. However, the assessor’s report indicates otherwise.
- Therefore, taking into account the nature of the damage, the likely cause, the cost of the repairs (from the builder’s invoice), the amount payable by the tenants is set out below: • Bedroom 1: wall damage, crayon and pen marks on walls, marks on door - $550.00 (insurance excess) • Bedroom 2: holes in walls (2), door pulled off hinge, marks on walls - $550.00 (insurance excess) • Master bedroom: scratches, marks, drawings on walls, damage to trim, door, wardrobe door - $550.00 (insurance excess) • Bedroom 4: hole behind the door, wall damage, door damage - $550.00 (insurance excess) • Bedroom 5: wall and door damage - $550.00 (insurance excess) • Bedroom 6: wall damage, door, curtain rod removed from the wall - $550.00 (insurance excess) • Hall and stairway: drawings on walls, removal of light from the wall - $550.00 (insurance excess) • Kitchen: glass cooktop chipped, wall damage (drawings on wall) - $550.00 (insurance excess) • Lounge: wall damage (drawings and marks), door damage - $550.00 (insurance excess). • Bathroom heated towel rail – the tenants accept responsibility for this cost, being $172.50 to re-attach the towel rail. • Garage: drawings and marks on walls, garage door damage - $550.00 (insurance excess).
- I have taken into account 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 calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Previous order
- On 31 May 2024 the Tribunal made an order relating to this tenancy, for an amount of $136.20, to be paid by the tenants. The amount payable under the previous order is incorporated into this order for enforcement purposes. Filing fee and name suppression
- As the landlord has been successful with the application, the tenants are to pay the landlord’s filing fee.
- The landlord’s request for name suppression is granted on the same basis.