Published tribunal order
Tenancy Tribunal case 4613869 — Property damage at 107A Pohutukawa Drive, Owhata, Rotorua 3010
Decided 21 Nov 2023 · Published 21 Nov 2023 · Application 4613869
Landlord favoured
- Property damage
- Cleanliness
Order
- Bond Services to pay Precision Property Management Limited Sarah Savage $821.32 from the bond immediately, calculated as follows: DescriptionLandlord Repairs to wall in bedroom plaster/paint$200.00 Lake City Electrical Invoice – repair$385.25 Lake City Electrical Invoice – inspection$215.63 Window reglazing$1,007.85 Interior cleaning$200.00 Rubbish removal $126.50 Filing Fee$20.44 Total award$2,155.67 Deducted from Bond$2,155.67
- Bond Services to pay the balance of the Bond to $84.33.
Reasons
- Both parties attended the hearing.
- The landlord has 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?
- 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 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 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.
Did the Tenant cause damage to the electrical wiring in the home?
- The Landlord has provided a detailed account of the events leading to the discovery of tampering with the electrical wiring at the rental property. The timeline indicates that there were unauthorised and potentially dangerous modifications made to the electrical system after the tenants moved in, leading to the need for repairs and inspections by qualified electricians to ensure the safety of the property.
- The Landlord’s claim is substantiated by the following points: a. Evidence of tampering with the electrical system was found by a professional electrician. The tampering appears to have been purposed to circumvent the power meter, to draw power without a designated provider. I spoke with the investigating electrician at the hearing. b. There was one tenancy prior to this one, and that tenant had reported no problems with the power. c. The Landlord confirmed there had been no electrical work done at the home which they had purchased in 2020. They had obtained a building report when purchasing the home and, while the electrical wiring was not inspected, there were no irregularities with the power. d. The Landlord had not lived in the home and the previous Tenant had a power provider which continued for a few days into this Tenancy. e. A power company confirmed that the power had been disconnected, which contradicts the Tenant’s claim of having some power without a legitimate reconnection. f. The Landlord has documented communications and efforts to resolve the issue, including involvement from electrical and power companies. g. There is photographic evidence and professional assessments supporting the claim of tampering. h. The Landlord made a police report concerning the theft of power, which aligns with the suspected illegal wiring.
- I have reviewed the following documentation provided by the Landlord: a. Photos of power connected at OUTGOING inspection 18/05/2023: These photos serve as a "before" reference to show the state of the electrical system when the previous tenant left, which could be compared to the current state after the alleged tampering. b. Copy of previous tenant’s power account: Shows the power was connected by the Tenant. The Tenant would have no reason to make use of a system which circumvented the metre. c. Turnbull (electrician) text the Tenant advising installing Rangehood: The electrician came to the home to install a rangehood but was told there was no power. This was days into the tenancy and suggests the power had not been reconnected. d. Job Card sent to Mike at Lake City electrical: Emergency to sort out power: Documents the Landlord’s immediate action to rectify the issue, indicating the urgency and seriousness of the situation. At that time, the Landlord may have thought the electrical work had been completed prior to the Tenancy. e. Mike Lake City Electrical Photos of wiring left: Provides visual evidence of the tampering. f. Email and photos from Unison regarding damage and emergency disconnection: Provides professional third-party verification of the damage and the safety issues posed by the tampering. The power was disconnected by Unison until the wiring was made safe. g. Photos of holes from contractor who removed all the unsafe wires through the property. h. Lake City Invoices: Itemised accounts of the costs incurred for repairs. 12. a. Police Report Acknowledgement form: Official documentation that the issue was reported to the police by the Landlord. b. Breach Notice sent to tenants — 23/06/2023: The Tenants were formally notified of the breach under ss 40(2A) and 55(1B) of the Act. c. Precision Connection confirmation Nova: Demonstrates Landlord’s efforts to reconnect the power legally and safely. d. Mike Lake City Electrical — Electrical Certificate: An official document that certifies the electrical work done, which can be a requirement for reconnection by the power company and records that a repair was required to the switchboard as someone had tried to bypass the meter.
- The Tenant’s denial must be weighed against the evidence provided. Unless the Tenant can provide a plausible alternative explanation for the evidence of tampering, the presumption would be that someone accessed the property with the Tenant’s knowledge or consent and altered the electrical system in a manner that circumvented the meter.
- It is generally the Landlord's responsibility to ensure that the property is in a safe and habitable condition, which includes electrical wiring that meets legal standards. However, if a tenant or someone under the Tenant’s control causes damage or alters the property in a way that breaches the Tenancy Agreement or the Residential Tenancies Act 1986, 1 the Tenant can be held responsible for the cost of repairs.
- In this case, given the provided timeline and documentation, it appears reasonable to hold the Tenant accountable for the cost of repairing the electrical system to its proper, safe condition.
- I conclude that the Tenant or someone acting with the Tenant’s consent or knowledge was responsible for the unauthorised alterations.
- In conclusion, based on the evidence presented by the Landlord, the Tenant should pay to reinstate the wiring in the home to a safe and lawful condition. 1 See. ss 40(2A) and 55(1B) of the Residential Tenancies Act 1986. Further Damage
- The Tenant has accepted liability for holes in the walls and the broken glass window as well as interior cleaning costs totalling $200.00 and rubbish removal costs of $126.50, as agreed upon.
- 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.
- Because Precision Property Management Limited Sarah Savage has wholly succeeded with the claim I must reimburse the filing fee. Addendum
- This Order includes the further claims which were discussed and agreed and amounts not recorded in the total award presented in the previous Order. Some amounts were not stipulated in the additional application and were added subsequently by the Landlord, prior to the hearing, and hearing records confirm they formed part of the hearing and were omitted from the Order.