Published tribunal order
Tenancy Tribunal case 4827180 — Rent arrears at 21 Girvan Place, Tokoroa, South Waikato 3420
Decided 29 Apr 2024 · Published 29 Apr 2024 · Application 4827180
Mixed / unclear
- Rent arrears
- Property damage
Order
- Christina Perceval is to pay Eves Realty Limited $2,579.60 immediately, calculated as follows: DescriptionAmount Rubbish removal$437.00 Compensation for Garage Internal Partition Wall $2,122.16 Application Fee$20.44 Total award$2,579.60
Reasons
- The Landlord attended the hearing. The Tenant did not attend the hearing.
- 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 Tenant did not remove all rubbish, according to the Landlord. The cost of removing the rubbish came to $437.00 as per the invoice from a third-party contractor who completed the job.
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 careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
- 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 Tenant removed a partition wall inside the garage, affixing it to the outside of the garage to make a wood shelter. The timber used to build the internal wall was not treated and has been irreparably damaged by weather and rain. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The Landlord has provided and invoice for the construction of a replacement wall inside the garage, which cost I approve: $2,122.16.
- 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.
- The Landlord has succeeded in its claims and I reimburse its filing fee.