Published tribunal order
Tenancy Tribunal case 4821437 — Cleanliness at 22 Seddon Street, Aramoho, Whanganui 4500
Decided 7 Jun 2024 · Published 7 Jun 2024 · Application 4821437
Landlord favoured
- Cleanliness
- Property damage
Order
- The requirement for service is dispensed with and the landlord’s application is to proceed as if it had been served on the tenant.
- Jason Karl Thomas must pay Bartley Real Estate Limited $8,078.70 immediately, calculated as shown in table below. DescriptionLandlord Lock/key replacement$316.80 Rubbish removal$5,813.82 Cleaning$1,200.00 Lawns and Garden work$115.00 Repairs: blocked drain$782.85 Filing fee reimbursement$20.44 Total award$8,248.91 Bond retained by landlord$170.21 Total payable by Tenant to Landlord$8,078.70
Reasons
- The landlord attended the hearing. The tenant did not attend the hearing.
- The landlord made application to the Tribunal on 21 March 2024 which was more than two months after the end of the tenancy. This means that the application and other documents required to be served on the tenant must be posted to an address that the tenant has given to the landlord in writing within the last two months, or served in person on the tenant, or delivered to the tenant's place of residence, or given to an authorised agent of the tenant. See section 91A(2) Residential Tenancies Act 1986 (“RTA”).
- The landlord gave evidence that it made contact with a close relative of the tenant who had been provided as a contact person by the tenant. This relative advised that the tenant was in prison and that all communications could be sent to her.
- The landlord’s application, supporting documentation and notice of the hearing were posted to the prison and to the tenant’s relative.
- I am satisfied that in these circumstances all reasonable efforts have been made to serve the application and corresponding documentation on the tenant. I am satisfied that steps have been taken that have brought, or are likely to have brought, notice of the application to the tenant’s attention.
- In accordance with section 91B(2) RTA, I direct that the requirement for service is dispensed with and that the landlord’s application is to proceed as if it had been served on the tenant.
- The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
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 landlord provided photographic and verbal evidence that the tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish. The landlord’s evidence is that the tenant simply walked away from the property leaving it in a filthy condition with a substantial accumulation of rubbish. The work required to clean and remove rubbish was extensive.
- The tenant did not return the keys.
- 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 landlord provided evidence in the form of a plumber’s invoice that the tenant caused a drain to be blocked by flushing wet wipes. As the tenant had been in the property for over eight years, I am satisfied that the landlord has proven the damage on the balance of probabilities. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- The amount ordered is proven.
- The landlord holds the balance of the bond in its rent account on behalf of the tenant. It is appropriate that the landlord apply the balance of the bond to the amount owing by the tenant to the landlord.
- Because Bartley Real Estate Limited has wholly succeeded with the claim I must reimburse the filing fee.