Published tribunal order
Tenancy Tribunal case 4627009 — Property damage at 256 Pupu Valley Road, Takaka 7182
Decided 7 Sept 2023 · Published 7 Sept 2023 · Application 4627009
- Property damage
- Rent arrears
Party names are redacted in the official published order.
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Carina Faetz must pay Billy Kerrisk Property Management Limited As Agent For James Slater $291.87 immediately, calculated as shown in table below.
Reasons
- Both parties attended the hearing. Ms Kaylene Tasker appeared for the landlord in a contract capacity. Given staff turnover and the absence of the principal of Billy Kerrisk Management Limited, the only person present at the hearing who was familiar with the premises and tenancy, beyond any submitted written evidence, was the tenant.
- The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. The bond has already been released by the tenant and is held by the landlord.
- A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
- The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
- In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.
- This was a new home at the commencement of this tenancy.
How much is owed for rent?
- The tenancy ended on 17 April 2023. The landlord provided rent records which prove the amount owing at the end of the tenancy was $251.43. This was never disputed by the tenant and she was aware of that owing when she released the bond to the landlord.
Is the tenant responsible for 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. The excess here is $600.00.
- 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.
- 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: Bench.
- There were two areas damaged on the kitchen benchtop. One was the removal of the edge strip on the kitchen benchtop and then a burn mark from burning incense. The strip damage was noted in the March 2020 routine inspection, but no repair took place until after the tenancy ended. The burn occurred in February 2023.
- The cost of replacing the edge strip was $1,207.50. I queried why no further action took place after the damage and before the end of the tenancy, especially considering the possible insurance claim that might have been lodged. The actual cost appears excessive and given no evidence of prior planning or costings regarding the repair that was accepted by the tenant I cap tenant liability at the insurance excess of $600.00. Bathroom vanity
- The landlord provided photos that supported the chipping on the vanity drawers veneer (edges). This damage was accepted by the tenant at the time and a replacement vanity was purchased for $620.00 on 15 December 2021. It remained in storage under the end of the tenancy when it was installed by a plumber. The tenant was happy to leave the existing vanity in situ until the end of the tenancy. It does not appear the tenant was advised of the replacement cost or provided with the invoice, nor was any action taken to have the cost compensated when the purchase was made.
- The second part of the cost of replacing the vanity was evidenced by an invoice for $510.00. This invoice contained a line item for a shower door handle that was not part of any claim ($148.56) and the labour at 3.25 hours included the tasks of disconnecting and reinstalling the existing top and tapware.
- I struggle with the full cost here. I am both mindful of depreciated value, the damage as evidenced and the requirements of s 49 regarding mitigation of loss 1 . Given the absence of informed parties, I was unable to understand what other alternatives were considered regarding repair to the drawers. I note the replacement is of a different style and possibly better suited to likely use in a tenanted property.
- Considering the circumstances, I have awarded the cost of the vanity replacement as that appears to have been accepted by the tenant. However, I decline the installation costs, given the lapsed time, unrelated costs and allowance for depreciation over the approximately four years of the tenancy. That is an inexact approach, but the lack of information precludes anything better as a way of balancing the respective obligations.
- The two damages are accepted as more than fair wear and tear, and the tenant has not disproved liability. The insurer declined insurance as the damage was not a single event, meaning more than one excess would apply. This was not economic.
- The amounts ordered are proved.
- 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. I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan where appropriate. Application filing fee
- Because Billy Kerrisk Property Management Limited As Agent For James Slater has substantially succeeded with the claim I have reimbursed the filing fee.