Published tribunal order
Tenancy Tribunal case 4782583 — Property damage at 3 Clarke Grove, Richmond Heights, Taupo 3330
Decided 9 Apr 2024 · Published 9 Apr 2024 · Application 4782583
Landlord favoured
- Property damage
- Cleanliness
- Rent arrears
Order
- Courtney Haitana must pay Tremain Rentals Limited As Agent For Craig & Krystyna Shaw $3,688.17 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,800.00 (3584295-010) to Tremain Rentals Limited As Agent For Craig & Krystyna Shaw immediately.
Reasons
- Both parties attended the hearing.
- The landlord has applied for rent arrears, compensation of over $20,000, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. How much is owed for rent??
- The long tenancy (of some seven years) ended on 6 December 2023. The landlord provided rent records which prove the amount owing at the end of the tenancy is as ordered. The tenant did not dispute this.
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. The landlord arranged a carpet clean at a cost of $180.00. This is returned in full.
- The tenant did not return the garage door remote. This was remedied by the landlord at a cost of $163.88. This is returned in full.
- The exit methamphetamine composite test indicated possible contamination above the level considered safe by this Tribunal. A subsequent detailed test was conducted but after repainting. It did not identify any areas of concern. The landlord sought the cost of both tests. As indicated and discussed at the hearing, having considered the sequence and results, I have awarded the composite test but reduced the detailed test cost awarded to reflect that it effectively became the baseline for the next tenancy.
- The amounts ordered are proved.
Is the tenant responsible for the damage to the premises?
- This was a long tenancy of some seven years. Assessment of damage has been made more difficult as the tenant undertook a number of improvements, seemingly with the owner knowledge or approval.
- 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.
- “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 negligent damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.
- The following damage was caused during the tenancy:
- Holes in the walls that required plastering and sanding. The invoice for $1,668.00 also included rehanging a sliding door. The tenant accepted this invoice.
- Repair and painting in the lounge/rehanging or replace curtains and clean out the wood burner. The invoice for these tasks was $1,494.94. The awarded amount is reduced to reflect wear and tear in the curtain fittings and depreciation against the painting costs.
- Walls – repainting. The wall were freshly painted at the commencement of the tenancy, albeit it over wallpaper in parts. The landlord sought $9,200.00 for the cost of repainting. The economic life of a painted wall (at five years) is less than the duration of this tenancy. I have considered depreciation, as well as the areas of damage that were caused by the tenant, mostly through the removal of fixtures at the end of the tenancy. The use of stick-on Duracell on a number of walls was problematic. I have awarded $1,150.00 as the tenant fair contribution to the cost of repainting, beyond what might be expected from normal use.
- The 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.
- I have declined the following claims: a. Broken garage door switch. This is considered wear and tear. b. Replacement of blinds. Not proven. c. Replacement of vanities/remedial work in downstairs toilet. The delay between the work, the owner’s apparent acceptance of the tenant changes, and uncertain condition and age means this claim is dismissed. Not proven as tenant liability. d. Replace broken slats in garden shed. Not proven as tenant liability. Pre- existing damage more than likely in-part. Application filing fee
- Because Tremain Rentals Limited As Agent For Craig & Krystyna Shaw has substantially succeeded with the claim I have reimbursed the filing fee.