Published tribunal order
Tenancy Tribunal case 4705755 — Rent arrears at 5 Moko Lane, Greenhithe, Auckland 0632
Decided 14 Mar 2024 · Published 14 Mar 2024 · Application 4705755
Landlord favoured
- Rent arrears
Order
- Minhan Sun must pay Mars Property Management Limited $3,410.44 on or by 14 June 2024, calculated as shown in table below.
Reasons
- Both parties attended the hearing.
- The landlord has applied for rent arrears, compensation, and reimbursement of the filing fee following the end of the tenancy.
How much is owed for rent?
- The tenancy was for a 12-month fixed term commencing on 5 December 2023 and ending on 3 December 2023.
- The tenant moved out on 16 June 2023 and the landlord conducted an exit inspection on 21 June 2023. 5.
- A tenant that ends his/her/their fixed term tenancy early is deemed to have abandoned the premises before the end of the lease and is liable to pay rent for any period up to and including the date of the expiry of the fixed term or the date of commencement of a new tenancy of the premises, whichever is the earlier. See Section 61(3)(b)of the RTA
- The tenant says the landlord found a new tenant that was willing to sign and commence a new tenancy on 1 July 2023 but did not sign the agreement, so the new tenancy fell over and the landlord had to go back to the market to look for another tenant to rent the property. The tenant says that she should not be held liable for rent beyond the date the initial new tenant signed the tenancy agreement when it was the property manager’s incompetence that had led to the new tenant not taking up the tenancy on 1 July 2023. She provided WeChat messages from the property manager to support her defence.
- The We Chat messages proved that the property manager had found a new tenant, but that new tenant never moved into the property because the new tenant did not pay the required bond or rent in advance. This left the property manager having to go back to the rental market to seek a new tenant for the property. The messages also show the property manager was very clear with the tenant that she remained liable for the rent until the new tenant moved in, which occurred on 30 July 2023.
- Section 49 of the RTA confirms that if the tenant has abandoned the tenancy the landlord must take reasonable steps to mitigate their loss by seeking to find a new suitable tenant to take up the tenancy. I find that the property manager took all reasonable steps to find another tenant and there was a legitimate reason why the first potential new tenant did not move into the property.
- I find that the tenancy ended on 29 July 2023 and the tenant is liable for the rent to that date. The landlord provided rent records which prove the amount owing at the end of the tenancy. Is the tenant liable for the costs the landlord incurred because of the fixed term tenancy ending early?
- The tenant can also be ordered to pay reasonable compensation for any loss or damage that has resulted from the reduction in the term of the fixed term tenancy.
- The tenant abandoned the fixed term tenancy before the end of the fixed term and the landlord incurred reasonable costs of $1,130.00 for break lease administration fees, advertising fees and credit check fees. The tenancy agreement at clause 1.3(a)(iv) limits these costs to one week’s rent. The landlord has not changed more than is provided for in the tenancy agreement.
- I have granted the landlord compensation for these costs it incurred because of the reduction of the fixed term 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.
- The tenant says she had the premises cleaned by a professional cleaner after she moved out and that she left the premises in a reasonably clean and tidy state.
- The landlord sought $2,070.00 for a deep clean of the interior of the house and a further $1,610.00 for rubbish removal and removal of unwanted items left behind by the tenants.
- The landlord produced a quotation for these costs dated 21 November 2023 (5 months after the tenant had moved out), had no invoice and no proof of payment and no photographic evidence to prove the house was not left in a reasonable clean and tidy state.
- The landlord failed to provide evidence to support its claims and its claims for compensation for cleaning and rubbish removal is dismissed.
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 claimed the tenant caused the following damage during the tenancy: a. Extensive damage to walls and ceilings, requiring the gib to be replaced, the walls and ceilings plastered and painted b. Damage to the carpet requiring it to be replaced; and c. Interior doors damaged, requiring repair and rehanging.
- The landlord claimed this damage was more than fair wear and tear and it sought $12,432.00 compensation for these repairs.
- The tenant denied that she was responsible for the damage and stated she had paid $1,100.00 to repair the carpet and nothing else was raised with her by the property manager at or after the exit inspection.
- The landlord produced a quotation for these costs dated 21 November 2023 (5 months after the tenant had moved out), had no invoice and no proof of payment and no photographic evidence to prove the damage had been done nor that the damage was done by the tenant during her tenancy.
- The landlord failed to provide evidence to support its claims and its claims for compensation for damages is dismissed. Reimbursement of filing fee
- Because Mars Property Management Limited has wholly succeeded with the claim I must reimburse the filing fee.