Published tribunal order
Tenancy Tribunal case 4629449 — Property damage at Unit/Flat 4, 177 Tweed Street, Appleby, Invercargill 9812
Decided 16 Oct 2023 · Published 16 Oct 2023 · Application 4629449
Landlord favoured
- Property damage
- Cleanliness
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Angelina Heitia must pay Inspire Property Management Limited $1,211.42 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $274.56 (6071358-026) to Inspire Property Management Limited immediately.
Reasons
- The tenant failed to attend the hearing. A previous order resulted in termination of the tenancy and a partial bond paid to the landlord for rent arrears.
- The landlord has applied for compensation, refund of the balance of the bond, and reimbursement of the filing fee following the end of the tenancy.
- When the tenancy ended there was another payment of rent made by the tenant. This has been taken into consideration and the reduction made for the total amount outstanding.
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 is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- Minor cleaning was required and the carpets needed to be cleaned.
- The tenant did not return the keys.
- 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 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.
- The following damage was caused during the tenancy:
- Here were a number of holes in walls throughout the house that required fixing. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- 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. 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 Inspire Property Management Limited has wholly succeeded with the claim I must reimburse the filing fee.