Published tribunal order
Tenancy Tribunal case 4731031 — Property damage at 5 Sunrise Place, Kekerengu, Kaikoura 7274
Decided 16 Apr 2024 · Published 16 Apr 2024 · Application 4731031
Landlord favoured
- Property damage
- Cleanliness
Order
- Eliana June Ngangaru Delamere Phelan must pay Matt Ward $13,086.59 immediately, calculated as shown in table below.
- This order incorporates the Tribunal order made on 3 November 2023 under application 4671769.
Reasons
- The landlord attended the hearing, conducted via video. The tenant did not join and a call out was made. The call went unanswered and to voicemail.
- Having heard from the landlord previously (see case conference minute dated 21 February 2024), I remain satisfied it is appropriate to apply section 91B(2)(c) Residential Tenancies Act 1986 and dispense with the requirement for service and proceed as if the notice has been served on the tenant in accordance with this Act.
- The landlord advised that he has been unable to contact the tenant since the case conference. He has tried a number of local contacts to try and reach her but to no avail. No tenant contact with the Registry has been made.
- The landlord has applied for compensation, and reimbursement of the filing fee following the end of the tenancy. The prior order TT4671769 was requested to be joined to this order.
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.
- The tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish. The landlord sought $500.00 for his cleaning and rubbish removal costs. Based on the photos this is a modest claim and it is awarded in full.
- The post-tenancy methamphetamine testing found unacceptable levels of methamphetamine contamination (above 15μg/100cm²). The earlier case conference minute provided details on how this Tribunal approaches methamphetamine contamination. An insurance claim was successfully made and the excess of $2,500.00 sought. This is awarded. Part of the remediation effort will replace other damage that the tenant would otherwise have been liable for, particularly carpet in the living and main bedroom.
- While not claimed, photos showed a smoke detector had been removed.
- The following chattels were damaged or missing at the end of the tenancy: a. couch ripped, b. glass dining table smashed, c. cupboard drawers broken, d. bedside tables broken, e. paint and scratches on dressers, f. lamps broken, g. painting damaged, h. vacuum cleaner burnt out, i. microwave badly damaged, and j. tools and lined removed.
- The premises was a fully furnished short-term rental before this tenancy. The landlord provided photos of the chattels in place at the commencement and the damage or absence at the end. Replacement value of such chattels is difficult to determine and I have made a provision of $2,000.00 compensation to replace or repair all chattels as listed, allowing for likely depreciation as appropriate. There were other items missing that the landlord listed but was unable to evidence.
- The washing machine was removed from the premises. $350.00 is allowed for the replacement cost. That amount reflects the depreciated value of that type of washing machine.
- 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 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.
- “Fair wear” is deterioration caused by the reasonable use of the premises. “Fair tear” is deterioration caused by the ordinary operation of the forces of nature. Importantly, intentional or negligent damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.
- The following damage was caused during the tenancy. All damage has been established by photos. Costs are yet to be finalised and the awards below are based on quotes or estimates of effort. The awards tends to be lower than would be expected if professionally remediated as the landlord will manage or undertake the repairs: a. Garden retaining/sleepers. These have been removed and left scattered around the property. The repair will take an estimated 18 hours at $50 per hour. This estimate appears reasonable and $900.00 is awarded for the repair. b. Fence – above the retaining. $200.00 is awarded for the repositioning/repair of the fence that failed after the retaining was removed. c. Electrical fittings replacement/repair: Lights/fittings/rewiring. There are a number of broken fixtures as well as ceiling lights pulled down in three difference rooms. Electrical repair or replacement of both wiring and the fixtures is required. A quote for approximately $5,7000 was provided but allowing for some other tasks, I award a reduced sum of $4,000.00. This work will need to be completed by electricians. d. Doors – a number of the solid timber doors have had fittings attached, with resulting holes when removed. A sum of $200.00 has been awarded for the labour and material costs to repair the doors. e. Wardrobe. A wardrobe was extensively covered in drawings. The landlord hopes that this can be removed through cleaning without further repainting. An allowance of two hours for this repair is reasonable and $100.00 awarded. f. Bathroom vanity. The vanity top has split. The damage was not reported and appears more than wear and tear. The repair strategy of removing, regluing and surface coating was estimated at a minimum of two hours and $100.00 is award towards the cost of this repair. g. Fence - $50.00 is awarded for the costs of repositioning/fixing the privacy fence. h. Wood burner – careless or intentional corrosion damage to top. An allowance of $100.00 has been awarded for the removal and repair of this damage.
- Other damage was evidenced in photos but the landlord waived any further claims in the interest of resolving the application today.
- The damage above is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- The amounts ordered are proved.
- I have taken into account 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 taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Prior order
- On 3 November 2024 the Tribunal made an order relating to this tenancy, for abandonment and rent arrears, with the bond released to the landlord. The monetary order was for $1,866.15. That previous order is incorporated into this order for enforcement purposes. Application filing fee
- Because Matt Ward has substantially succeeded with the claim I have reimbursed the filing fee.