Published tribunal order
Tenancy Tribunal case 4753209 — Property damage
Decided 19 Aug 2024 · Published 19 Aug 2024 · Application 4753209
- Property damage
Party names are redacted in the official published order.
Order
- [ The tenant] to pay Lodge City Rentals Limited as Agent for C Morse $2,044.03 from the bond, calculated as shown in table below.
- The Bond Centre is to pay the bond of $2,044.03 ([Bond number suppressed]) to Lodge City Rentals Limited as Agent for C Morse immediately.
Reasons
- Mr Hallam appeared for the landlord. There was no appearance by the tenant.
- Mr Hallam, property manager, has appeared. There has been no appearance by the tenant.
- The tenancy commenced on 09 February 2022, and was periodic under the tenant’s name alone. On 13 November 2022, the landlord’s property manager, Mr Hallam, received a call from a neighbour concerning an incident at the property to which police had attended. A short time later Mr Hallam visited the property and discovered damage. The tenant was not present.
- On or about 14 November 2023, Mr Hallam spoke with the tenant by phone Mr Hallam states the tenant explained that the damage had occurred during an incident and that their partner was responsible. The tenant advised however that despite their partner being the main protagonist in the incident, that they had been detained by police and could not return in the near future. Mr Hallam states that the parties mutually agreed to end the tenancy on 28 November 2023.
- On 29 November 2023, the landlord filed a claim that the tenant was responsible for damage to windows, interior, and exterior of the property, and that the keys provided at the commencement of the tenancy had not been returned. These claims were confirmed by Mr Hallam at a Case Management Conference on 21 March 2024, at which the tenant attended. The claim as then set down for hearing on 14 June 2024, but on that date the hearing was unable to proceed. On 27 June 2024, the matter was relisted for hearing on 19 August 2024.
- The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).
Is the tenant responsible for damage to the premises and failing to return the keys?
- The photographs produced by Mr Hallam, showing damage to walls and doors throughout the property, were taken on or about 28 November 2023. These show holes in six doors and approximately ten walls. The holes ranging in size from small to medium. The photographs also show graffiti on a number of walls.
- The pre tenancy checklist report was sent to the tenant at the commencement of the tenancy and was completed and returned to the landlord on 14 February 2023. The checklist records pre-existing damage to walls and doors throughout the interior and exterior of the property, although the specific nature of the damage is not described. Mr Hallam did not personally conduct any pre tenancy inspection on behalf of the landlord and is unable to produce any evidence refuting the tenants claim of pre-existing damage.
- Mr Hallam states that the owner engaged contractors to replace broken windows, replace locks, replace doors, and plaster holes and gib stop. The landlord then repainted the property themselves.
- To succeed with a claim for damage the landlord must prove that damage 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 of the Act.
- “Fair wear and tear” is generally described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
- Where the damage is careless, and occurs after 27 August 2019, section 49B of the Act 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) of the Act.
- 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) of the Act.
- 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.
- In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord.
- In awarding compensation for damage, the Tribunal must also consider 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, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful lifespan. Analysis of claims
- The issue in the claim for damage is determining what, if any damage, has occurred during the tenancy, and in particular during the incident on 13 November 2023.
- Acknowledging that the Tribunal must establish the claim on the evidence, Mr Hallam has helpfully assisted the Tribunal by identifying that the graffiti on the walls, damage to a linen door in the lounge, and damage to the wall of the garage is not pre-existing damage recorded in the pre tenancy inspection report. The Tribunal accepts it is more likely than not that this damage occurred during the tenancy. The tenant has not disproved their liability for this damage.
- However, beyond this, it is not possible to determine responsibility for any other damage over and above that recorded in the pre tenancy checklist. The burden is on the landlord to establish that more likely than not the tenant is responsible for the claimed damage. While the Tribunal may conclude that it is likely the tenant is responsible, it cannot be satisfied that this is more likely than not the case.
- Mr Hallam has proposed that the Tribunal consider awarding $150.00 for the linen door, $250.00 toward the costs of the paint, and 10 hours labour at the rate of $23.50 to repaint the walls affected by graffiti. In the circumstances, this is reasonable, and accordingly the Tribunal awards the landlord $561.56. I am satisfied that only the damaged areas have been repaired, and I make no deduction for betterment.
- The landlord has produced photographs showing six broken windows at the end of the tenancy. Based on the evidence, I am satisfied that these windows have been damaged during the tenancy, and that the damage appears to be more than fair wear and tear. The tenant has not disproved their liability. The amount claimed awarded.
- The landlord has produced evidence of the keys provided at the commencement of the tenancy. I am satisfied that these keys were not returned at end. The amount claimed is awarded. Costs
- As the landlord has been partially successful with their claim, the Tribunal orders reimbursement of the filing fee. Name suppression
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- The tenant has been substantially successful defending the claims, they are granted name suppression. There are no grounds to suppress the landlord’s name.