Published tribunal order
Tenancy Tribunal case 4635812 — Property damage at 185 Brockville Road, Brockville, Dunedin 9011
Decided 12 Oct 2023 · Published 12 Oct 2023 · Application 4635812
- Property damage
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
- Samantha Hunter McEwan must pay [The landlord/s] $700.00 immediately, calculated as shown in table below.
Reasons
- The landlord’s agent attended the hearing.
- The tenancy began on 12/5/2021 and ended on 2/8/2023, with a rent of $550.00 per week.
- The landlord has applied for compensation, refund of the bond and reimbursement of the filing fee following the end of the tenancy.
Did the tenant comply with her 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.
- The landlord sought compensation as follows: a. $100.00 towards the skip hire for rubbish removal b. $19.00 for replacement keys and change of locks c. $145.00 for replacement smoke alarms d. $20.00 for a replacement toilet roll holder e. $8.00 for material to unblock a drain f. $31.00 for replacement of an outside gate latch and cabin hook g. $12.00 for replacement of light bulbs.
- In support of the claim the landlord’s agent provided receipts and photographs taken at the end of the tenancy.
- I am persuaded, just, by the evidence that the tenant did not remove all rubbish and chattels, return all keys, or replace light bulbs at the end of the tenancy.
- In addition, the toilet roll holder, an outside gate latch and cabin hook were missing and required replacement.
- Awards have been made for the amounts claimed.
- However, no award is made for replacement of the smoke alarms due to the lack of any receipt for purchase of replacement alarms.
- Nor is any award made for the material costs of unblocking the drain because the evidence did not establish that the drain was blocked due to the actions of the tenant.
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 landlord sought compensation not covered by insurance as follows: a. $4,609.00 for replacement of carpets damaged by a pet b. $650.00 for replacement of a heat pump c. $300.00 for replacement of a second washing machine d. $336.00 for repairs to the dishwasher
- In support of the claims the landlord’s agent provided a quote for the carpets and invoices for the replacement of the heat pump and repairs to the dishwasher, and photographs.
- In addition, the landlord’s agent provided a letter from the tenant written in March 2023 about damage to carpets and the heat pump.
- I am satisfied, just, that damage was caused during the tenancy to the carpets, heat pump and washing machine and the tenant has not disproved liability for these.
- Awards have been made for carpet replacement and replacement of the heat pump.
- However, no award is made for replacement of the washing machine because no receipt was available to support the costs claimed.
- I find the landlord has failed to prove that the repairs to the dishwasher were needed due to any careless or deliberate act by the tenant, as opposed to fair wear and tear.
- The claim for the costs of repair to the dishwasher fails.
- In making the awards have taken into account betterment and depreciation and the fact that the landlord considered the damage was careless.
- 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 considered the age and condition of the items at the start of the tenancy and their likely useful lifespan.
- As [The applicant/s] has substantially succeeded with the claim I have awarded the filing fee.
- Although the landlord did not ask for suppression, the agent requested name suppression at the hearing.
- Suppression is granted pursuant to section 95A because the landlord was largely successful with the claim.