Published tribunal order
Tenancy Tribunal case 4605270 — Property damage at 12 Percheron Road, Pukekohe, Pukekohe 2120
Decided 14 Aug 2023 · Published 14 Aug 2023 · Application 4605270
Landlord favoured
- Property damage
- Cleanliness
Order
- Shanice Harvey must pay Reforma Limited as agent for Trunjj Trustee Limited $1,379.24 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $2,440.00 (6429724-001) to Reforma Limited as agent for Trunjj Trustee Limited immediately.
Reasons
- Both parties attended the hearing.
- The landlord has applied for compensation and refund of the bond following the end of the tenancy.
Did the tenant comply with their obligations at the end of the tenancy?
- 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.
- The tenant did not leave the premises reasonably clean and tidy.
- The amounts ordered are proved.
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 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.
- 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 following damage was caused during the tenancy: the internal walls, blinds, front entrance door, windows and front entrance door joineries. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- However, only the amounts ordered are proved.
- I do not consider the dog scratch damage on the joineries of the ranchslider and windows intentional in the sense that the tenant intended to cause damage and took the necessary steps to achieve that purpose. While the keeping of the dog by the tenant outside of the property technically breached the tenancy agreement, the scratching by the dog was not intentional nor reckless to an extent that the tenant has allowed the situation to continue, knowing that damage was a certainty. I nevertheless consider that the tenant is liable for the repair costs to the joinery, subject to sections 49B(3)(a) and 49B(3A)(a) RTA set out above.
- The landlord failed to properly avail themselves to the landlord's insurance by making a claim against the damage. Sections 49B(3)(a) and 49B(3A)(a) RTA require a landlord to limit the tenant’s liability on careless and negligent damage to the lesser of the insurance excess or four weeks' rent.
- The landlord confirmed that there is insurance cover on the damage to the front entrance door (dent caused by punch) with an applicable excess of $500.00.
- Applying the actual and projected insurance excess to the cost of repairs of the front entrance door and the windows and ranchslider joineries respectively, I make the above awards in favour of the landlord.
- The amounts proved are more than the bond; the bond will be disbursed to the landlord accordingly and a monetary order for the remaining debt as set out above.