Published tribunal order
Tenancy Tribunal case 4770178 — Property damage at Unit/Flat 2, 11 Atkinson Avenue, Otahuhu, Auckland 1062
Decided 11 Apr 2024 · Published 11 Apr 2024 · Application 4770178
Landlord favoured
- Property damage
Order
- Jere Naomi Chel Hape must pay Barfoot & Thompson Limited as agent for Christopher Chin $5,768.72 immediately, calculated as shown in the table below.
- This order incorporates the Tribunal order made on 8 February 2024 under application 4770178.
Reasons
- Only the landlord, represented by Ms Dewan, attended the hearing. While notified, the tenant did not attend at the scheduled time, and the hearing proceeded. Background
- This is the second hearing for this application. As noted in the earlier order dated 8 February 2024, the landlord applied for termination of the tenancy for abandonment, rent arrears and payment from the bond. The landlord’s application was amended to include compensation for the locksmith’s charges. The landlord further amended the application to seek compensation for rubbish removal and repair of damage.
- Following the first hearing, the tenancy was terminated, and the landlord was awarded rent arrears, compensation for locksmith’s charges, and payment from the bond. The balance payable by the tenant after deduction of the bond (of $1,480.00) was $1,748.28. The landlord states that this amount remains unpaid, so it is noted above.
- The balance of the landlord’s claims for compensation for rubbish removal and damage was adjourned part-heard, and are considered below.
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) of the Residential Tenancies Act 1986 (the RTA).
- The landlord has established, with photographic evidence, that the tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish. The landlord advises that these costs are no longer claimed. General principles regarding responsibility for damage
- The landlord claims compensation for damage. To be successful, 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 of the RTA.
- Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies.
- 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 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) of the 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) of the RTA.
- The landlord advises that the insurance excess is $1000.00. The rent for the premises is $370.00 per week.
- 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 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.
Is the tenant responsible for the damage to the premises?
- The following damage was caused during the tenancy: a. Living room: wall and carpet damage, and damage to an electrical switch. The actual cost of the repair work is $4,473.50. The landlord seeks the insurance excess of $1,000.00. b. Kitchen: the oven was damaged and had to be replaced. There was also damage to kitchen cabinetry (cabinet doors) and the floor. The cost of the repair work and replacement of the oven is $3,588.00. The landlord seeks the insurance excess of $1,000.00. c. Bathroom and laundry: the tenant had painted the walls in the bathroom and laundry in a different colour. The painting was patchy, and all areas had to be re-painted. The bathroom door was also damaged. The cost of the repair work is $1,449.00. The landlord seeks the insurance excess of $1,000.00. d. Bedroom: cupboard doors were removed, there was damage to carpet and walls. The cost of the remedial work is $4,013.50. The landlord seeks the insurance excess of $1,000.00.
- The landlord has produced photographic, documentary and oral evidence, including photographs of the premises taken prior to the tenant moving in, and at the end of the tenancy. There are also invoices for the repair costs. The above damage 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. Filing fee
- Because the landlord has been successful, the tenant is to pay the landlord’s filing fee.