Published tribunal order
Tenancy Tribunal case 4666251 — Exemplary damages at 14 Wellfield Drive, Papakura, Papakura 2110
Decided 3 May 2024 · Published 3 May 2024 · Application 4666251
- Exemplary damages
Party names are redacted in the official published order.
Order
- Gurpreet Singh Saini must pay [The tenant/s] $870.44 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,440.00 ([Bond number suppressed]) to [The tenant/s] immediately.
Reasons
- Both parties attended the hearing.
- This is a cross application. The tenants filed an application on 24 August 2023 claiming that the landlord had charged them $600 for a visitor that was staying on and off for 3 weeks at the property and denied damaging the landlord’s property. During the hearing, the tenants also advised that the landlord had not lodged the bond with the bond centre during the tenancy.
- The landlord accepted that he had not lodged the bond during the tenancy, but said it was because he did not know he had to.
- The tenants seek the refund of their bond and reimbursement of the filing fee.
- The landlord has applied for compensation for repainting the interior of the property and for carpet cleaning, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
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.
- There is no dispute that the tenants left the property in a reasonably clean and tidy condition, returned the keys, and removed rubbish.
- The landlord however claims that there were two marks on the carpet. The landlord provided a photograph of one small mark on the carpet and an invoice for $100 for carpet cleaning. The tenants say there was a small mark where their bed had been in the bedroom leaving a small, flattened area.
- The landlord has difficulty in proving his claims against these tenants as there was no pre-let inspection report and photographs. The landlord cannot prove that the mark was caused during this tenancy and furthermore that this was a mark on the carpet.
- I am dismissing the landlords claim for carpet cleaning.
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 landlord claims that the following damage was caused during the tenancy: -Scuff marks on the paintwork -Paint chips on the paintwork -Peeling veneer on kitchen cupboard -Loose door stops and a missing piece of rubber on the end of the door stop.
- The landlord claims that the damage is more than fair wear and tear.
- The tenants deny causing any damage to the property other than a tiny chip in the paintwork, which they say is wear and tear.
- The landlord has provided close up photos of paint chips and scuff marks.
- I do not consider the marks in the photos to show damage. I believe that these are marks that can be expected from living in a property day to day. This is not damage but wear and tear.
- In addition, that landlord is not able to prove that any marks were not there at the start of the tenancy. There is no proof that these marks were caused during this tenancy.
- The door stops require simply being screwed back into the woodwork. This is not damage. The missing rubber end is not damage and is of no value. The veneer can simply be glued back down and is not damage.
- The tenants deny any damage or knowledge of the veneer lifting on the kitchen cupboard. They say the landlord has sent them photos of all the marks and chips he claimed were damage to the property. The veneer was never shown to them, and this is the first time they have been aware of this claim.
- I am dismissing the landlords claim for damages to the paintwork, doorstop and veneer lifting.
- I landlord must have proof of the condition of the property before a tenancy commenced and then an exit inspection at the end of the tenancy. Only when both sets of inspection reports are available can it be possible for a landlord to prove damage caused during a specific tenancy. Failure to lodge the bond.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- The tenants advised that the landlord did not lodge the bond within 23 working days of receiving it. The landlord accepts that he did not lodge the bond with the bond centre and says that he is not an experienced landlord and did not know he had an obligation under the Residential Tenancies Act 1986 (RTA) to do so.
- I find that the landlord has committed an unlawful act by not lodging the bond within 23 working days of receiving same.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- The landlord says that he did not act intentionally in to keep the bonds from the tenants and that he did not know he has an obligation under the RTA to lodge the bond with the bond centre. I find that the landlord acted intentionally and that he has a responsibility to know the law that relates to a landlord obligation under the RTA.
- The tenants sought to get their bond refunded from the bond centre after the end of their tenancy. It was at this time that they were advised that the bond had not been lodged by the landlord. The tenants contacted the landlord who then lodged the bond after the end of the tenancy.
- It is in the public interest that when a landlord breaches the obligation to pay the bond to the bond centre that an award of exemplary damages is made to both act as a punishment and a deterrent to other landlords. Tenants should be assured they pay bonds to landlord that those bonds are kept safe at the bond centre and that repayment of the bond is not at the whim of the landlord.
- I consider that the sum of $500.00 exemplary damages is warranted for the breach. Compensation:
- The tenant advised the Tribunal that during the tenancy their brother came to stay with them. The brother was visiting and staying with the tenants and other family members over a three-week period.
- The landlord found out that the brother was staying for some days over this period and asked for an additional $200.00 per week for the 3 weeks. The tenants paid the landlord $600.00 in total in addition to their weekly rent.
- The landlord stated in the hearing that power and water is included in the rental and so additional visitors would increase the water and power bills. The landlord believed that $200.00per week would cover any increase in water and power bills.
- The landlord also stated that the tenants should have asked his permission to have a visitor staying for a few weeks as it was his property. The landlord stated that in the tenancy agreement only two adults and two children were permitted to reside there.
- I have advised that landlord that it is unreasonable for a landlord to expect a tenant to advise a landlord of visitors to the property. Furthermore, that seeking additional rent over and above the weekly rental, is not reasonable either.
- I am refunding the $600.00 that the tenants paid to the landlord for the brother staying over that three-week period. Bond
- The bond is to be refunded to the tenants from the bond centre immediately. Suppression
- The tenants seek suppression of their names and details. As they have been successful with their application, I must grant suppression. Filing fee
- Because [The applicant/s] has wholly succeeded with the claim I must reimburse the filing fee.