Published tribunal order
Tenancy Tribunal case 4628290 — Property damage at 17 Hockin Place, Fairfield, Hamilton 3214
Decided 23 Dec 2023 · Published 23 Dec 2023 · Application 4628290
- Property damage
Party names are redacted in the official published order.
Order
- The tenant must pay the landlord $9,187.44 as set out in the table below:
Reasons
- The landlord appeared. There was no appearance by the tenant.
- The tenancy commenced on 06 July 2019 and ended on 08 June 2023. The landlord’s application was filed on 12 July 2023.
- The landlord’s claims are that the tenant is responsible for damage (in brackets is the compensation sought): (i) To the carpet throughout the property ($2,750.00), (ii) To net curtains and curtain rails ($321.00), (iii) To walls and doors throughout the property ($12,477.50), (iv) To the floor in the kitchen ($1,081.00), the oven / stove ($ 599.00), the kitchen cabinetry ($2,700.00), (v) To the bathroom vanity ($696.00), the towel rail ($40.00).
- The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).
- To succeed with a claim for damage the landlord must prove that damage 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 Act.
- Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
- Where the damage is careless, and occurs after 27 August 2019, section 49B of the Act 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) of the Act.
- 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 Act. 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 Act.
- 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) of the Act.
- 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.
- In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord.
- In awarding compensation for damage, the Tribunal must also consider 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, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful life span.
- The property was built in the 1960’s and has three bedrooms, bathroom, toilet, and an open plan kitchen/ dining / lounge. There is no completed pre tenancy checklist. Shortly before the commencement of the tenancy the property was renovated, all the walls freshly painted, new carpet installed throughout, new bathroom and kitchen. The landlords partner gave evidence, having taken the promise to tell the truth, confirming that the property had been renovated. The landlord has also produced a written statement from an associate of the tenant, who introduced the tenant to the landlord and was present when a pre tenancy inspection was conducted, confirming that the inside of the property was “literally brand new.” The landlord states that following the renovation the tenant became the property’s first occupant. Carpet
- The landlord has produced photographs taken at the end of the tenancy showing damage to the carpets in the three bedrooms, hallway, and lounge. The damage consists of heavy staining, which the landlord states could not be removed.
- After considering the evidence I am satisfied that the damage has occurred during the tenancy and that it is more than fair wear and tear. Due to the extent of the damage my assessment is that the damage is likely the result of carelessness, bordering on recklessness. The landlord has insurance for damage caused by tenants with an excess of $750.00 per claim. In this case the excess applies per room. The total amount claimed to replace the carpet is less than the combined excesses. The carpet was approximately 4 years old at the end of the tenancy. The useful lifespan of carpet in rental properties is around 8 – 12 years. I make a small reduction of 20% for betterment and award the landlord $ 2,200.00. Curtains
- The landlord claims that all the net curtains at the property were ripped and unrepairable or missing, and that most of the curtain rails were also missing.
- Apart from the landlord stating that the net curtains were new at the commencement of the tenancy, there is no other evidence of the condition of the curtains. The bundle of photographs produced by the landlord taken at the end of the tenancy contains just the two of the curtains. The landlord has been candid stating that at the end of the tenancy his focus was not on the curtains, with attention on the more visible damage to other areas of the property.
- Determining damage involves an objective assessment. In this case there is insufficient evidence produced concerning damage to the curtains and the claim is dismissed. Damage to walls
- The landlord has produced photographs showing damage to walls, door frames, and skirting boards throughout the property. While I would not necessarily describe any one area of damage to walls as significant, it is widespread. In the bedrooms there are four holes consistent with having been struck by a fist or foot. The landlord states that someone had stuffed use nappies, food scraps, and other items of rubbish into the holes. A photograph has been produced. There was one hole in a wall in the hallway. There are numerous small holes throughout the property which appear to have been caused by someone throwing a dart or similar object repeatedly into the walls and a door frame. There are no apparent holes to the walls in the kitchen. The landlord states that marks on the wall in the kitchen behind where the fridge sits are more than fair wear and tear. In the lounge, there is a dent and a hole in the wall. There is a hole in the toilet wall. There are four holes in the bathroom wall where the towel rail has been removed. There are also wallpaper tears in the bedrooms down to the jib, graffiti on walls, and symbols that have been scratched into one of the door frames.
- I am satisfied that the damage has occurred during the tenancy and is more than fair wear and tear. Based on the evidence I find that, in some cases the damage was likely intentional, in other areas more consistent with carelessness. The amount claimed to repair the damage, which includes repainting the walls throughout the property, doors, doorframes, and skirting boards is $12,447.50. The portion of the quote attributed to doors and frames is $3,860.00. There is however no evidence of damage to the doors. There is evidence of damage to two door frames. I take this into account. There has also been a discussion concerning betterment and depreciation. The landlord submits that a deduction of 50% for betterment and depreciation is appropriate. I agree. Based on the evidence, the quote, and considering betterment and depreciation, I award the landlord $5,000.00 to repair the damage. Kitchen floor
- The kitchen initially had laminated flooring, which was new at the commencement of the tenancy. The landlord has produced photographs of the floor in the kitchen taken at the end of the tenancy showing that 90% of the boards have been removed, exposing the floorboards beneath. The landlord states that the tenant advised that they had lifted the boards and stored them in a shed and intended to re – lay them, but this did not occur. The flooring was not found in the shed.
- I am satisfied that the damage occurred during the tenancy and is more than fair wear and tear. I am satisfied that removing the floor was intentional. The landlord has produced a quote for $1,081.00 to replace the floor. The useful life span of laminate flooring in rental properties is around 15 years. The flooring was approximately 4 years old at the end of the tenancy. I deduct 15% for betterment and depreciation and award the landlord $940.00. Oven and hotplate.
- The oven is integrated into the kitchen cabinetry and has the hotplate set into the bench top. The landlord has produced a photograph of the hotplate, which is heavily soiled, with two missing control dials. The inside of the oven is unclean. The landlord states that the insurance assessor considered the oven as uncleanable and hotplate unrepairable. There is no evidence from the assessor.
- Having viewed the photographs and heard from the landlord I am satisfied that more likely that not the oven and hotplate are damaged and that the damage was more than fair wear and tear, likely the result of carelessness. The landlord is claiming $599.00 to replace the unit. This is less than the insurance excess. The oven and hotplate were around 4 years old at the end of the tenancy. The useful life span of appliances in rental properties is around 8 years. In this case I deduct 40% for betterment and depreciation and award the landlord $360.00. Bathroom vanity and towel rail
- The landlord has produced photographs showing damage to the wall mounted vanity in the bathroom. There are two drawers, and both have been significantly damaged. The landlord states the drawers were beyond repair. The photographs also show holes in the wall where the towel rail was located.
- I am satisfied that the damage occurred during the tenancy and that it is more than fair wear and tear. The landlord states that the towel rail was missing. On the evidence I am satisfied that the damage to the vanity was likely the result of carelessness. The amount claimed to replace the vanity is less than the insurance excess. The cost of replacing the towel rail was $40.00. Fitted furniture in rental properties typically has a useful lifespan of around 15 years. I deduct 25% for betterment and depreciation and award the landlord $522.00. I award the full amount claimed for the towel rail. Kitchen cabinetry
- The kitchen cabinetry was new at the commencement of the tenancy. The landlord has produced photographs of the cabinetry at the end showing a broken door, two missing doors, a broken drawer front, and at least two broken shelves.
- I am satisfied that the damage occurred during the tenancy and that it is more than fair wear and tear. The extent of the damage in my view is consistent with intentional damage. The landlord has produced an invoice to repair the cabinetry for $2,700.00. As stated, fitted furniture in rental properties typically has a useful lifespan of around 15 years. I deduct 25% and award the landlord $2,025.00. Costs
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
- The landlord seeks name suppression.
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- The landlord has been substantially successful and is granted name suppression.