Published tribunal order
Tenancy Tribunal case 4829940 — Tenancy dispute
Decided 7 Aug 2024 · Published 7 Aug 2024 · Application 4829940
- Exemplary damages
- Property damage
- Smoke alarms
Party names are redacted in the official published order.
Order
- Sariah Nesbit owes [The landlord] $5,475.29, calculated as shown in table below (“the debt”).
- Sariah Nesbit must repay the debt as follows: a. By 219 weekly payments of $25.00 each Tuesday, commencing on Tuesday 13 August 2024 and ending on 24 October 2028; and b. A final payment of $0.29, to fully repay the debt, to be paid on Tuesday 31 October 2028; and c. Where the tenant’s financial circumstances improve, the tenant has agreed to contact the landlord to make arrangements to increase the weekly amounts payable or to make lump sum payments.
- Sariah Nesbit fails to pay debt repayments within 2 working days of the due dates, the full amount of the remaining debt will fall due immediately.
- Sariah Nesbit has confirmed to the Tribunal that she will take a copy of this Order to Work and Income New Zealand (WINZ) and authorise the $25.00 weekly debt repayments to be deducted directly from her WINZ benefit by WINZ and paid to [landlord name suppressed] to his bank [landlord bank account details suppressed]. He can be contacted by WINZ on [landlord mobile number suppressed] or [landlord email suppressed] if WINZ requires any additional information to set up the direct debit.
- Where Sariah Nesbit does not authorise the weekly debt repayments to be made to [landlord name supressed] by WINZ by 12 August 2024, the full amount of the remaining debt will fall due immediately and [landlord name suppressed] will be free to pursue the debt through a debt collection agency of his choice.
Reasons
- Both parties attended the hearing.
- The landlord has applied for compensation, exemplary damages, and reimbursement of the filing fee following the end of the tenancy.
- The tenant applied for a refund of the water rates overpayment of $565.14 the landlord has received.
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 is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- The tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
- 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 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 took responsibility for significant damage she agreed was caused during the tenancy. At the 22 March 2024 mediation, the tenant agreed to pay a fixed sum of $6,491.55 as a contribution towards the $9271.55 of damage the landlord paid to have repaired. The tenant agreed at mediation the damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- The amounts ordered are proved.
- The mediator considered betterment and depreciation on 22 March 2024. 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, the mediator has also considered the age and condition of the items at the start of the tenancy and their likely useful lifespan. Exemplary damages
- The landlord sought exemplary damages for what he says was the “deplorable state of the premises” when possession was returned to him. The RTA does not provide exemplary damage remedies for this type of tenant breach of her s40 of the RTA obligations.
- The landlord’s claim for exemplary damages is dismissed. Name suppression
- The landlord applies for non-publication of his name and identifying details.
- The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
- The landlord has substantially succeeded in his proceedings. I do not consider publication is in the public interest or justified because of the landlord’s conduct or any other circumstances of the case.
- Non-publication is ordered.