Published tribunal order
Tenancy Tribunal case 4636150 — Rent arrears
Decided 25 Oct 2023 · Published 25 Oct 2023 · Application 4636150
- Rent arrears
- 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’s name and identifying details.
- Vinka Tina Bella Tuhakaraina, Hone Wiremu Haare, Huia Maria Haare and Bling Eye Limited (Company No 8250281) must pay [The landlord/s] $3,075.00 immediately, calculated as shown in the table below.
- The Bond Centre is to pay $570.44 from the bond ([Bond number suppressed]) to [The landlord/s] immediately, for the benchtop and the filing fee.
- The balance of the bond is to remain at the Bond Centre.
Reasons
- The landlord applied to the Tribunal for termination of the tenancy on 21 July 2023.
- On 17 October 2023 the Tribunal terminated the tenancy with effect from midnight on Thursday 19 October 2023. The rent arrears to Thursday 19 October 2023 are $3,075.00.
- The Tribunal noted that there were outstanding issues relating to (1) responsibility between the tenants for the rent arrears; (2) the tenants’ liability for the cost of repairs to the kitchen benchtop; and (3) liability for exemplary damages for failure to allow the landlord access for repairs.
- Of the tenants, only Ms Tuhakaraina attended the hearing on 17 October 2023, along with [The landlord’s representative] for the landlord. Rent arrears
- Ms Tuhakaraina was a tenant with two other people. Her company was also named as a tenant. It was a periodic tenancy. On 13 May 2023 she gave written notice to terminate the tenancy. She left after making a final rent payment on 14 June 2023 for the rent week ending 15 June 2023. At that point there were no rent arrears.
- The landlord says the tenants were told that either everyone had to leave, or the remaining occupants would need to sign a new tenancy agreement. There have been attempts by the landlord to have the two remaining tenants (“the ongoing” or “continuing” tenants) and additional occupants sign a new tenancy agreement. The continuing tenants refuse to sign.
- The House of Lord’s decision in Hammersmith and Fulham London Borough Council v Monk [1992] 1 All ER 1 is authority for the proposition that a periodic joint tenancy may be determined by notice given by one of the joint tenants without the concurrence of any other joint tenant. Indeed, this principle is incorporated in clause 5 of the terms and conditions in the tenancy agreement (“If any Tenant gives notice to end a periodic tenancy, then that notice will be binding on all Tenants”).
- Ms Tuhakaraina’s email of 13 May 2023 complied with section 51(2B) of the Residential Tenancies Act 1986 (the Act). She gave at least 28 days’ notice in writing and identified the premises to which the notice related. The notice failed to specify the date by which she was to vacate the premises, and was not signed, but the intention to terminate on 5 weeks’ notice was stated clearly and the non-compliance with these requirements was not misleading (see section 51(3) and (4) of the Act). I consider that the notice was valid.
- I find that the periodic tenancy ended on Saturday 17 June 2023. At that point the rent was in credit. Ms Tuhakaraina left the property, but the other tenants remained. Pursuant to section 60(1) of the Act, all the obligations of the remaining tenants continued, including liability for the rent. Section 60 cannot apply to Ms Tuhakaraina, however, because she left when the tenancy was terminated.
- The landlord may have permitted the continuing tenants to remain in the premises for more than 90 days after the periodic tenancy was terminated, in which case the landlord is deemed to have granted a new periodic tenancy (section 60(2)). If so, the further periodic tenancy was terminated for rent arrears by the Tribunal on 17 October 2023.
- I find that the continuing tenants are liable for the rent arrears of $3,075.00. This is consistent with the legal principles discussed above and is also consistent with the substantial merits and justice of the case pursuant to section 85(2) of the Act. In my view, Ms Tuhakaraina should not have to pay rent for the period after she validly gave notice, brought the tenancy to an end, and vacated.
- I have considered [The landlord’s representative]’s submission that the tenants were co-tenants, which means the tenancy continued if any co-tenant stayed at the premises. In my view, the correct legal analysis is that the initial periodic tenancy was terminated by notice and may have been replaced by a deemed tenancy under section 60(2) of the Act. If there was no deemed tenancy, the ongoing tenants have been living at the property without any right of occupation and are liable to eviction as squatters (section 65 of the Act). Either way, Ms Tuhakaraina is not liable for the rent arrears arising after her tenancy ended. Kitchen bench top
- The landlord provided photographs of a black granite benchtop showing dents. According to the quotation for repair, there were 30 chips of various sizes. The photographs show numerous small cuts and dents. The landlord claimed $2,495.30 for repairs.
- Ms Tuhakaraina said she did not know how the damage occurred.
- The tenancy agreement stated that the property was insured with an excess of $550.00.
- 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.
- 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 4 weeks' rent. The weekly rent was $950.00 so 4 weeks totals $3,800.00.
- Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to 4 weeks' rent.
- 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.
- 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 (Guo v Korck [2019] NZHC 1541).
- The premises were insured, and I consider the house insurance covers the benchtop as a permanently attached fixture or fitting. The policy adopts a “per event” approach to the application of the excess. I consider that the definition of “event” is wide enough to cover all the damage to the benchtop, even if it happened at different times. I consider that one excess of $550.00 should be applied to the benchtop repairs.
- I find that the benchtop was damaged carelessly on more than one occasion. I respectfully disagree with [The landlord’s representative]’s submission that the benchtop was damaged intentionally. The damage takes the form of small cuts and chips, mainly to the edge of the benchtop. Intentional damage would likely show more severe kinds of damage and cover a more widespread area. While [The landlord’s representative] said he has a granite benchtop and the damage shown could only be caused deliberately, no evidence from a tradesperson or benchtop supplier was produced to support this opinion.
- I award $550.00 for repair of the benchtop. The tenants are jointly liable for this damage which occurred before Ms Tuhakaraina vacated. Exemplary damages
- The landlord claimed exemplary damages pursuant to section 48(4)(b) of the Act. The landlord said a tradesperson arranged to repair the benchtop but was then denied access.
- On 21 July 2023 the supplier instructed by the landlord to perform the repairs emailed the landlord explaining why they had not been able to gain access. The email said that, on Wednesday 19 July 2023, the supplier had initially spoken to Ms Tuhakaraina’s granddaughter and then spoke to someone else (a female) who gave permission for the work to be done on Friday 21 July 2023.
- On Friday 21 July 2023 the supplier said they received a text from Ms Tuhakaraina stating that they could not go to site prior to contacting the tenant. The supplier called Ms Tuhakaraina, who was rude and said she was busy. The supplier said that they eventually contacted the tenants who stated that the works had already been completed. This was not the case.
- Ms Tuhakaraina said her granddaughter did not pass on the message. When the supplier called her on 21 July 2023, she was busy at work. She told the supplier that they needed to contact the tenants before entering the premises. Having given notice and vacated, she took the view that she had no authority to consent to entry by the supplier.
- I find that Ms Tuhakaraina did not deny entry to the supplier. She told them to contact the tenants. If (contrary to my view) she did deny entry, she was no longer a tenant and therefore, not susceptible to liability under section 48 of the Act. And even if she was still a tenant, she had a reasonable excuse for not allowing the supplier to enter, because she no longer lived at the property and no longer considered herself to be a tenant.
- It is unclear who falsely told the supplier that the work had already been done. Contact details had been given for one of the new occupants of the house, not one of the continuing tenants. It is unclear whether that person was acting on behalf of the continuing tenants when they denied access.
- Given these evidential difficulties, I am not satisfied that it would be just to award exemplary damages. Application of the Bond
- There is a bond of $3,800.00 at the Bond Centre. I understand this was paid by Ms Tuhakaraina, but as a legal matter it was security for the liabilities of all the tenants until the periodic tenancy to which she was a party ended.
- I have applied part of the bond to cover those costs for which Ms Tuhakaraina is jointly liable (the insurance excess and the filing fee). The remaining bond, in my view, ought to be refunded to her. However, this was not discussed. I have decided to leave the balance of the bond at the Bond Centre. Filing fee and name suppression
- The landlord’s application has been partly successful. It is appropriate to award the filing fee.
- The landlord is granted suppression as requested.