Published tribunal order
Tenancy Tribunal case 4768158 — Property damage at Unit/Flat rear flat, 46 Ruahine Street, Paraparaumu,
Decided 6 Jun 2024 · Published 6 Jun 2024 · Application 4768158
Landlord favoured
- Property damage
- Cleanliness
- Smoke alarms
Order
- Susana Allamanda Sione Tupu must pay Weitao Wang $7,484.42 immediately, calculated as shown in table below.
- All other claims are dismissed.
Reasons
- The landlord attended the hearing. There was no appearance for the tenant. She had been served with the notice of hearing, therefore it went ahead in her absence.
- The landlord has applied for compensation following the end of the tenancy. The bond has already been transferred to him in payment of rent arrears. 1
- The tenancy commenced in February 2022 and ended in February 2024 by Tribunal order, for abandonment. In October 2023 Mr Wang had applied to the Tribunal for orders directing Ms Tupu to repair the significant damage around the property and remove the rubbish that had accumulated in the garden. 2 It appears that at some time shortly after that order, she abandoned the property.
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 (RTA).
- The landlord has established in evidence that the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish. The property was extremely filthy with a considerable amount of rubbish left throughout, both inside and out. The landlord filled two skip bins with the belongings left behind.
- The tenant also did not return the keys and had removed the smoke alarms.
- The amounts ordered are proven in evidence and considered reasonable in the circumstances.
Is the tenant responsible for the damage to the premises?
- The landlord seeks considerable compensation for the extensive damages throughout the property found after the tenant abandoned it.
- In order to be successful for a compensation claim for damages, the 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. 1 Tribunal Order 23 February 2024 2 TT 4642853
- 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. Here the insurance excess is $2,500 and weekly rent $500.
- The proceedings were adjourned on 10 May for Mr Wang’s insurance company to consider his claim for cover for this damage. The insurance company has now declined the claim and therefore Mr Wang has provided evidence that he has no insurance for these issues.
- 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 landlord submits that all the damage is intentional because of the way the tenant treated the house generally. She abandoned the property leaving wet rubbish on wooden floors and the kitchen bench top and with significant damage. I discuss each claim as follows: Shower
- The landlord established in evidence that the tenant had some how damaged the door of the shower so that it would not close properly. This meant that water leaked from it and damaged the flooring. She did not notify him of this damage as she is statutorily responsible to. 3
- The landlord has claimed compensation for replacing the flooring as it was wood and was significantly damaged by the water, and the shower door. Given that the tenant must have allowed this leak to occur for a lengthy period of time, I find this intentional damage. I find it more likely than not 4 that she was aware of the ongoing damage to the floor. 3 Section 40(1)(d) RTA 4 The relevant evidential standard of the balance of probabilities
- Damages claimed, and awarded, must flow naturally from the breach and be reasonable. In determining the compensation payable, depreciation must be taken into account. Depreciation is linked to the concept of betterment. Everything is subject to wear and tear and will need to be replaced in time. Where an item has to be replaced as a result of tenant damage, this hastens the process. If the damaged item is replaced with a ‘better’ item, compensation is adjusted to reflect that.
- Accordingly, I must take into account the age of the flooring. The exact age is unknown, but the wooden floors had been in place for a number of years. They were however in good condition and should have had plenty of life left. Having assessed the damage, I find that an award of $1,000 is reasonable in the circumstances.
- I approve the claim of $150 for repair to the shower door as sought, as I consider it reasonable in the circumstances. Walls
- Throughout the house a considerable number of holes had been made in the majority of walls. The tenant had started to repair them but not to a workmanlike standard. I also find this damage intentional given its nature and extent.
- I find that an award of $1,500 for the materials, repairs and patch painting reasonable. Carpet
- The landlord has established in evidence that the carpet had been ruined during the tenancy by the tenant’s dog ripping and staining it, and other stains. Given the extent of the damage I am satisfied that it was necessary to replace the carpet and it could not be cleaned.
- The carpet was approximately eight years old which is a carpet’s expected lifespan in a New Zealand residential tenancy. 5 However I am satisfied it was in nevertheless reasonable condition before the tenancy and therefore had life left in it. Accordingly, I award 20% 6 of the replacement cost to take into account betterment and depreciation. Oven 5 IRD depreciation rates 6 Actual cost $6,000
- The landlord has established in evidence that the oven had been broken (it was sitting askew) and considerably dirty. Accordingly, he has replaced it and seeks compensation for the cost of doing so.
- The photos of the oven prior to the tenancy show it was in reasonable condition. I am satisfied that leaving the oven broken and dirty to this extent is sufficiently negligent of the tenant to establish that it is more likely than not intentionally damaged.
- The oven was approximately six years old and current depreciation guidelines estimate the lifespan of an oven to be approximately eight years. Accordingly, I award 20% of the cost in compensation 7 . Laundry tub
- The landlord says the laundry tub was so dirty and rusty it had to be replaced. The evidence has not however established that it was. The photos only show clothes placed in the tub and given it is stainless steel it is hard to understand how it was damaged. At this point it is important to reiterate that the onus of proof lies with Mr Wang as he is bringing the claim. It is the civil standard of “balance of probabilities “or “more likely than not” but it still has to be met.
- Accordingly, this claim is dismissed. Rangehood
- The landlord has established in evidence that the tenant left the rangehood extremely dirty and left it running when they abandoned the property. This meant it was running for several months before the landlord entered. AS a result of this when it was found it was not working properly and had to be replaced.
- I consider this careless damage and as such find the tenant liable for the damage. I award $150 compensation to take into account depreciation. 8 Dishwasher 7 Actual cost $445.54 plus installation 8 Actual cost $246.05 plus installation
- The landlord claims that the dishwasher was so dirty it had to be replaced, however did not provide the substantiating evidence to establish his claim. Accordingly, it is dismissed. Other
- Because Mr Wang has substantially succeeded with the claim I have reimbursed the filing fee.
- No suppression orders have been applied for, as such none have been made.