Published tribunal order
Tenancy Tribunal case 4794600 — Property damage at 26 Heathdale Crescent, Papakura, Papakura 2110
Decided 3 Oct 2024 · Published 3 Oct 2024 · Application 4794600
- Property damage
Party names are redacted in the official published order.
Order
- Nadia Lynch must pay Pro Edge Property Management Limited $1,248.97 immediately, calculated as shown in table below.
- The Bond Centre is to pay $366.47 from the bond of $366.47 to Pro Edge Property Management Limited immediately.
Reasons
- The landlord attended the hearing. The tenant did not attend.
- On the 20 June 2024 I made an order in favour of the landlord for rent arrears, water arrears and rubbish removal.
- I adjourned the landlord’s claims for damage to the carpet, damage to doors and painting to today’s hearing to allow the landlord to get further information to support their claim, namely the pre tenancy inspection report and any other documents that show the condition of the property at the beginning of the tenancy.
- The landlord has been unable to get that report from the previous property managers. The burden of proof and evidence
- A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
- The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
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.
- I am satisfied that the tenant caused damage to the carpet and one door at the house. The damage to the carpet and the door is recorded on the exit property inspection as being caused by the tenant’s dogs and the photographs of the damage is consistent with that assessment. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- The landlord claimed the cost of repair for 3 doors but in the inspection report only one door is noted as being damaged. Therefore, I have only made an award for one door.
- The landlord also claimed for painting the interior, but the photographs do not show any damage to the paint work caused by the tenant, and there is no damage to the walls (apart from bubbling- which is not usually damage caused by a tenant) recorded in the text on the vacate inspection report. The landlord has not met the evidential burden of proving that the tenant damaged the walls which required painting and therefore the landlord’s claim is dismissed.
- The landlord sought the total cost of replacement carpet of $2500. Whilst I am satisfied that the tenant caused the damage, the loss to the landlord is not simply the replacement cost, I must take into account depreciation. The landlord’s representative who attended today’s hearing did not know the age of the carpets, and although we tried to contact the owner of the property, he did not answer his phone. The matter has been in the Tribunal for a considerable period of time and was adjourned from June to today to allow the landlord to gather evidence to support their claims. In the absence of the evidence as to the age to the carpet I award the landlord half of the cost.
- 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 awarded the landlord the filing fee as they have been mostly successful in their claims.