Published tribunal order
Tenancy Tribunal case 4768577 — Property damage
Decided 7 Jun 2024 · Published 7 Jun 2024 · Application 4768577
- Property damage
- Cleanliness
Party names are redacted in the official published order.
Order
- Mahina Teresa Bidois must pay [The landlord/s] $8,455.19 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $276.00 ([Bond number suppressed]) to [The landlord/s] immediately.
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. I was satisfied adequate service had completed and I continued with the hearing after the call went unanswered.
- The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The landlord withdrew the claim for water rates. It was very high and some history of leaks during the tenancy meant the amount sought could not be fairly assigned against the tenant. The claim for plumbing was also withdrawn.
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 did not leave the premises reasonably clean and tidy, and did not remove all rubbish. The carpet required professional cleaning. The landlord produced photos that supported the extent of the work required to return the premises to a reasonable condition. Invoices established the costs.
- 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.
- The following damage was caused during the tenancy: a. Replace broken stovetop: Photos prove the stovetop was broken beyond repair and required replacing at a cost of $1,012.00. b. Wall damage and repainting: Photos pre and post tenancy evidence damage to a number of internal walls that required repair and repainting. The ingoing condition photos show the walls in some rooms were already somewhat tired or previously patched. I have reviewed the evidence and awarded a lesser amount that invoiced. The cost of a full repaint is not considered a tenant liability, and regardless, the pre-existing condition of the interior finish would require a considerable consideration of depreciation. I have awarded $2357.50 as tenant contribution to the costs incurred. c. External wall/boards. Photo evidence what seems more than likely to be damage to multiple areas from a vehicle. I have awarded $1000.00 of the invoiced costs, reflecting some betterment in the repairs conducted. d. Window repair. A bathroom window was broken and required replacing. I have awarded $316.25; being 50% of the invoiced amount foe tow window replacements.
- The damage is more than fair wear and tear 2 , 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 2 “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 careless damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation. depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
- The following claims were withdrawn by the landlord during the hearing: a. Electrical work, b. One window, c. Carpet repair, and d. Blinds.
- The claims for the replacement of the garage door and toilet seat are dismissed. I am not satisfied it is established that the damage to either was due to careless or intentional actions of the tenant. Filing fee
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Suppression
- Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
- Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
- The landlord requested suppression in its application. As it has been substantially successful, suppression is ordered.