Published tribunal order
Tenancy Tribunal case 4739593 — Property damage at Unit/Flat 9B, 18 Ronwood Avenue, Manukau, Auckland
Decided 11 Jun 2024 · Published 11 Jun 2024 · Application 4739593
- Property damage
Party names are redacted in the official published order.
Order
- [The tenant/s] must pay Mccarthy & Mccarthy Limited $4,093.12 immediately, calculated as shown in table below. DescriptionLandlord Replace furnishings: washing machine$846.63 fire door replacement$1,000.00 Repairs: painting$980.00 Repairs: install doors$1,362.75 Repairs: carpet$619.50 Filing fee reimbursement$20.44 Total award$4,829.32 Bond-$736.20 Total payable by Tenant to Landlord$4,093.12
- The Bond Centre is to pay the bond of $736.20 ([Bond number suppressed]) to Mccarthy & Mccarthy Limited immediately.
- The remaining applications are dismissed.
Reasons
- Both parties attended the hearing.
- The tenancy ended, by consent, on 10 January 2024. A previous order of the Tribunal recorded that, together with the application for rent arrears and utilities.
- The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
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.
- Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage.
- 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.
- 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: a. Missing washing machine. b. Damage to the fire door. c. Replacement locks. d. Paint damage to the wall and doors. e. Cracking in the toilet bowl. f. Staining and burn marks on the carpet.
- The damage is all more than fair wear and tear.
- 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.
- In relation to the washing machine, at the end of the tenancy the tenant took this with her. She explains that she was told it would be replaced due to methamphetamine contamination at the premises. The tenant accepts that this is not an excuse for removing the washing machine.
- The washing machine is 5 years old. According to the IRD depreciation guides, a washing machine has a useful life of around 6.5 years. I consider that the amount awarded to the landlord should reflect the age of the machine, however I am also conscious that the tenant took the washing machine with her, rather than it being damaged. There is no indication that it is not in working order. Accordingly, I consider that a strict application of depreciation would be unfair to the landlord and would unjustly benefit the tenant. Taking into account s85 of the Act and the requirement that I exercise my jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes, I have applied a reduction of 50% rather than the 77% which would have applied otherwise.
- In relation to the fire door, this was kicked in by Police when executing a search warrant. It is accepted by the parties that the warrant was validly obtained and executed. However, the landlord was advised in advance of the planned execution of the warrant and did not provide the Police with a key to the door. The building manager – who let Police into the building – also had a key to the door, which was not used.
- The question arises as to whether the landlord properly mitigated its loss by not providing the Police with the door key. I am not satisfied that it did. I have reduced the amount awarded, to reflect the missed opportunity to mitigate loss. While mitigation, in this case, would have removed the cost all together, I do not consider it just that the landlord should bear the entire cost, when the tenant’s partner’s actions were the cause of the warrant being executed. I have reduced the award made, but not declined compensation all together.
- In relation to the installation of the fire door, the bathroom door and the slider doors to the laundry and bedroom, I consider these costs are proved. The tenant indicated that the damage pre-dated the tenancy, however the photographs taken earlier in the tenancy do not appear to have the same damage. The tenant’s partner accepts causing the damage to the bathroom door, but that it was careless rather than deliberate. I accept that explanation.
- In relation to the painting, the landlord seeks repainting for the doors, walls and ceiling of the apartment. I accept that the painting of the doors is proved, but not the walls.
- The tenant’s position is that there was already wear and tear to the paint at the start of the tenancy, at that while she accepts putting some pin holes into the walls, that this does not justify the full repaint.
- There are no pre-tenancy photographs showing the condition of the paint at the commencement of the tenancy, and the photographs taken during the tenancy are not sufficiently detailed to properly assess the condition of the paint.
- I am not satisfied that the tenant is liable for the damage to the paint on the walls.
- The invoice for painting is not itemised. However, there is a quote on file for the repainting of the doors only. I am satisfied that it is appropriate to award this amount.
- In relation to the carpet, I consider the staining goes beyond fair wear and tear and the tenant accepts that it is possible the stains are from hair dye, as the landlord contends. The tenant indicated that had the termination of the tenancy been less stressful there may have been time to attend to cleaning the carpet. I accept that may be the case, however that doesn’t change the obligation on a tenant to leave premises reasonably clean and tidy and to repair any damage.
- That said, the carpet is around 7 years old. I have depreciated the cost on the basis of the IRD tables which indicate a useful life of around 10 years.
- The amounts ordered are proved.
- In relation to the toilet, the landlord alleges that there is a crack in the toilet bowl. The tenant’s position is that it was there are the commencement of the tenancy. There are no pre-tenancy photographs showing the toilet bowl, and this property manager was not managing the property at the commencement of the tenancy, so cannot speak to the condition of the property then.
- On balance, I am not satisfied that the landlord has proved the damage occurred during the tenancy and this claim is dismissed.
- In relation to the locks, following the Police search warrant, the locks were changed. However, it is common ground that the previous locks were a cheaper alternative and not compatible with the building’s master key system. The tenant says the lock was changed earlier in the tenancy as they had issues with the apartment not locking properly.
- The landlord has been told that it was because the door was kicked in by people visiting the tenants. The is a hearsay explanation and its origin is uncertain. This explanation was disputed by the tenants, and in any event is likely indicative of an unwelcome visitor, rather than someone on the premises at the tenant’s invitation.
- The landlord confirmed that even absent the kicking in of the door by Police, the locks would have had to be changed to fit the master key system.
- Accordingly, I am not satisfied that the need to change the locks was caused by the tenant’s breach of the Act, and this portion of the claim is also dismissed. Filing Fee
- Because Mccarthy & Mccarthy Limited has substantially succeeded with the claim I have reimbursed the filing fee. Suppression
- The landlord does not seek suppression of name.
- The tenant does seek suppression.
- The tenant has successfully defended part of the landlord’s claim and would be entitled to suppression on that basis.
- However, even if that were not the case, I consider that the tenant’s interests in suppression outweigh the public interest in this case. There have been other proceedings in the Auckland Tenancy Tribunal, where I was the adjudicator, in which, that landlord has taken significant and inappropriate steps to obtain private information about the tenant and has used that information inappropriately.
- This included an allegation that she spoke to the landlord in this case about the tenant. This landlord has a different recollection of that conversation, and I am inclined to believe the version told today. But it increases the tenant’s interests in suppression of her name and details, and I make an order for suppression accordingly.