Published tribunal order
Tenancy Tribunal case 4722480 — Property damage
Decided 19 Mar 2024 · Published 19 Mar 2024 · Application 4722480
- Property damage
- Exemplary damages
- Rent arrears
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.
- The Bond Centre is to pay the bond of $2,440.00 ([Bond number suppressed]) to [The landlord/s] immediately.
- Elise Alexandra Stickley must pay Advanced Property Management Limited Acting Agent For Michelle Stott & Derek Kawiti $5,038.76 immediately, calculated as shown in table below.
- The landlord shall dispose of the 2005 Audi, registration number (HST718), left at the premises by the tenant by selling it (if it has a saleable value) by public auction or by private contract at a reasonable market price or disposing of it if it has no saleable value, as the landlord sees fit.
- The amount owing to the applicant out of the proceeds of any sale of the 2005 Audi is $3,798.76.
- The landlord must pay the proceeds of any sale, less the amount owing, to the Bond Centre together with a copy of this order.
Reasons
- Both parties attended the hearing.
- The landlord has applied for a disposal of good order for a vehicle left at the premises, rent arrears, water rate arrears, compensation, exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Exemplary damages for failure to vacate the premises and rent and water rates arrears
- The landlord claims the tenant did not vacate the premises on 6 October 2023. the date the tenancy ended.
- The tenant gave back vacant possession to the landlord on 6 October 2023, but did not remove all her property from the premises. She repeatedly trespassed after returning the keys to the landlord on 6 October 2023, and engaged in breaking and entering to access the premises on 11 and 12 October 2023 to remove a wardrobe cabinet. The landlord was called by the neighbours after seeing someone breaking and entering the property and the New Zealand Police were called. A police report against the tenant, for trespass and breaking and entering, was made on 12 October 2023.
- The tenant says the landlord gave her permission to go and remove the wardrobe cabinet. The landlord confirmed she never called him to ask for a time for him to meet her at the property so he could allow her access. Had she done so, he says he would have agreed to meet her there and provided her with the access she required to move the cabinet.
- The tenant gave evidence that she didn’t think to call and make a time to meet the landlord at the premises, and she could not see anything wrong in putting her hand through the broken glass panels in the French door to open the bolt that kept the doors secured. She claimed she entered the house like that a lot when she lived there.
- A tenant must vacate the premises on the termination of the tenancy. See section 40(1)(e)(i) of the Residential Tenancies Act 1986.
- Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 40(3A)(a) and Schedule 1A Residential Tenancies Act 1986.
- The tenant did not vacate the premises on 6 October 2023, the date she gave the landlord vacant possession and handed over the keys to the property. As outlined in paragraphs 4 to 6 above, she returned to the property a number of time unlawfully. I find the tenant has committed an unlawful act.
- 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.
- In accordance with s 109(3)(a) to (d) of the RTA, I find it to be just to require the tenant to pay a sum in the nature of exemplary damages for the following reasons: a. The tenant was aware of that she was required to vacate the premises, leave it in a reasonably clean and tidy state and remove all of her possessions by 6 October 2023. She knew she had no legal right to access the premises after that date; and b. The tenant’s breach of her s40(1)(e) of the RTA responsibilities to quit the premises, remove all her goods from the premises, leave the premises in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish and other unwanted goods has caused the owners of the property considerable stress, inconvenience and a delay in being able to re-rent the premises and has also caused a loss of amenity to the new tenant and the public as a result of the tenant’s car being left on the berm for over 5 months; c. It is in the interests of the landlord against whom the unlawful act was committed to be compensated for stress, inconvenience, delay in being able to re-rent the premises and the loss of amenity for their new tenant; and d. It is in the public interest to penalise a tenant that commits such significant unlawful acts in breach of the tenants obligations pursuant to the tenancy agreement and s 40 of the RTA.
- The landlord also brought it to the Tribunal’s attention that in the orders made in NZTT 6434686 on 03 February 2021, it was noted that the tenant had failed to vacate the premises on the termination of the tenancy and repeatedly returned to the premises after offering up vacant possession.
- Given that the tenant has repeated the same pattern of behaviour at the end of this tenancy, I award $1,200.00 in exemplary damages for the tenant’s failure to vacate the premises on 6 October 2023 as a disincentive to her doing this in her future tenancies.
- The landlord also sought rent to the 12 October 2023, because the tenant repeatedly accessed the premises to that date. At the hearing, the tenant agreed to pay rent to that date.
- Therefore, the tenancy ended on 12 October 2023. The landlord provided rent records and water rates invoices which prove the amount owing at 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.
- The tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
- The lawns required mowing and the garden needed tidying.
- The landlord had to replace light bulbs.
- 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:
- The walls needed repainting after they had been touch painted with paint that did not match;
- The windows in the French doors and in the lounge were broken and needed reglazing;
- The dishwasher front panel was dented and needed repair;
- The brass French door handles were broken and needed replacing, a rug in the storage area needed replacing and a light shade was broken and the locks needed replacing after the tenant repeatedly broke into the house after offering up vacant possession on 6 October 2023.
- 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 considered 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 considered the age and condition of the items at the start of the tenancy and their likely useful lifespan. Disposal of 2005 Audi
- The landlord has applied for the disposal of a 2005 Audi, registration number HST718, that the tenant left at the premises at the end of the tenancy.
- The landlord has had several agreements with the tenant over the past 5 months for her to come and remove the vehicle. She has not done so.
- It is not practicable for the landlord to the return the car to the tenant. The car does not have a value above the cost of storing, transporting and selling it. It is estimated that the car would not fetch more than $500.00 on the open market and it will cost more than that to dispose of it or transport it to the tenant’s new premises.
- If the tenant has not removed the vehicle by 12noon on Friday 22 March 2023, the landlord may dispose of it at the tenant’s cost. Reimbursement of filing fee
- Because Advanced Property Management Limited Acting Agent For Michelle Stott & Derek Kawiti has wholly succeeded with the claim I must reimburse the filing fee.