Published tribunal order
Tenancy Tribunal case 4730111 — Property damage at 8D Oratu Place, Manurewa, Auckland 2102
Decided 14 Feb 2024 · Published 14 Feb 2024 · Application 4730111
- Property damage
- Cleanliness
Order
- The Tribunal declares that Noble Property Management Limited - as Agent for Ermila Tan are liable to pay [The tenant/s] $338.28, calculated as shown in the table below.
Reasons
- Both parties attended the hearing on 13 February 2024.
- The landlord has applied for outgoings, compensation, reimbursement of expenses and the filing fee following the end of the tenancy.
- The tenancy started on 16 August 2019 and ended on 4 September 2023. The weekly rent was $500.00. Water charges
- The landlord provided a water summary which establishes the amount owing at the end of the tenancy, based on the landlord’s final water reading ($43.07). Carpet cleaning
- The landlord claimed $262.50 for carpet cleaning. The tenant said the carpet was stained at the start of the tenancy. The ingoing inspection report dated 7 August 2019 does refer to a brown stain on the near-new lounge carpet. The exit inspection report dated 5 September 2023, however, refers to stains on the lounge carpet. The photographs show a number of stains. The carpet cleaning invoice refers to “(5 x red juice stains <=100mm)”.
- It is likely there was further staining to the carpet during the tenancy which necessitated carpet cleaning in the lounge. It is not clear that carpet cleaning was needed elsewhere.
- The cleaning invoice referred to cleaning in 3 bedrooms, the hallway and lounge. The invoice totals $262.50. I reduce this to $150.00 to compensate for cleaning the lounge carpet only. Painting
- 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 insurance excess was $750.00.
- The landlord said the insurer had declined cover because the damage was not a sudden or accidental event. In this event 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.
- There was smoke damage to the ceiling and walls of the lounge and kitchen, and to the ceiling of the hallway during the 4-year tenancy. The tenant said this was from burning incense and candles for religious purposes. The tenant said the damage was not very bad, and a friend had offered to repaint the affected areas for $8-900.00 with no charge for labour.
- The smoke damage is clearly shown in the photographs of the lounge and hallway ceiling but is not very visible elsewhere. The invoice from the maintenance company described the ceilings and walls as “heavily stained”.
- I consider that the damage goes beyond fair wear and tear. While using candles or incense for religious purposes is entirely understandable, it ought to be possible with reasonable care to do so without heavily staining the ceiling. I do not accept that such staining is a normal incident of reasonable use of the premises.
- I award the cost of repainting the walls and ceilings after making allowance for depreciation. The walls were at least 4 years old at the end of the tenancy. I award 60% of the amount claimed ($2,012.50) an award of $1,207.50. Break lease fee
- The landlord claimed $575.00 for break lease costs. The tenant gave 28 days’ notice of termination on 3 August 2023 because they had purchased a home. The tenant was unaware there would be a charge to end the tenancy.
- The tenant had signed a renewal of the fixed-term tenancy from 18 February 2022 to 18 February 2024, so the tenancy could not be terminated by the tenant giving notice. Only periodic tenancies can be terminated in that way.
- The tenancy renewal documents do not refer to any break lease charges, but in my view, they did not have to. A landlord who consents to the tenant parting with possession is entitled to recover from the tenant any expenses reasonably incurred by the landlord in respect of the parting with possession (section 44A of the Residential Tenancies Act 1986). The Act provides the right of recovery.
- The landlord has claimed $130.00 for administering the end of the tenancy, $175.00 for advertising for new tenants and attending viewings, $120.00 for administering the new tenancy including reference and credit checks, and $150.00 for administering the start of the new tenancy, including lodging the bond, providing the new tenants with keys, and conducting an ingoing inspection.
- Section 44A of the Act requires the expenses to be (a) reasonably incurred; and (b) “in respect of” the parting with possession. The words “in respect of” likely mean the same as “relating to” or “in connection with”. Despite the wide ambit of these words, I consider that expenses relating to the ongoing day-to-day management of the premises do not fall within section 44A. The purpose of section 44A is to enable the landlord to recover additional expenses, over and above the ordinary management time and expense that would have been incurred in any event.
- In this case the section 44A expenses are said to include administering the end of the tenancy as well as administering the start of the new tenancy with new tenants. In my view, items of expense such as correspondence with the owner informing them of the approaching end of the tenancy, performing the vacate inspection and processing the bond, reflect the ordinary cost of property management. The costs relating to the new tenancy were also incurred in connection with the continuing administration of the premises and were only indirectly incurred because the tenant parted with possession.
- I award the advertising costs for new tenants ($175.00) and the costs incurred vetting and selecting new tenants ($120.00) a total award of $295.00. Bond and rent credit
- My understanding was that the bond of $1,840.00 has been refunded to the landlord and, together with a rent credit of $214.29, was to be applied against the landlord’s claim.
- Due to the adjustments made to the amounts awarded to the landlord, the total award is less than the amount of the bond that has already been refunded. I have therefore declared that the landlord is liable to repay part of the bond to the tenant. Filing fee
- The landlord’s application has been largely successful. I award the filing fee.