Published tribunal order
Tenancy Tribunal case 4839442 — Property damage at 3 Tai Lane, Whitby, Porirua 5024
Decided 5 Jul 2024 · Published 5 Jul 2024 · Application 4839442
- Property damage
Party names are redacted in the official published order.
Order
- [The tenant/s] are to pay Pvp Properties Limited $362.00 from the bond in accordance with the following table:
- The Bond Centre is to pay the bond of $2,500.00 ([Bond number suppressed]) immediately apportioned as follows: Pvp Properties Limited and Poonam Singh: $362.00 [The tenant/s]: $2,138.00
Reasons
- Both parties attended the hearing.
- This tenancy commenced in August 2022 in this home which was a new build and purchase for Mr and Mrs Singh who are first time landlords.
- The Singhs initially applied the Tribunal to end the tenancy however the parties agreed to a termination on 3 June, shortly prior to the hearing. They both now seek clarification from the Tribunal as to who is responsible for costs that have been incurred.
- On the Singh’s part, they seek compensation/reimbursement for the following: a. A cooktop that has been replaced. b. Damage to the internal walls that has been quoted but is yet to be undertaken. c. Compensation for having to clean after the tenancy ended. d. Compensation for having to replace plants the tenants removed.
- The landlord had also sought compensation for a missing curtain however that was returned at the hearing with the acceptance of the landlord.
- For the tenants, they seek reimbursement of an extermination fee and a tradesman’s fee for investigating the cooktop. They also deny liability for the other claims.
- I address each of these claims separately in this decision. Before doing so, however, it is useful if I outline the requirements for proof. In the Tenancy Tribunal, applicants are required to establish the case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. The parties should note that whilst I may not have discussed here all evidence proffered, it has all been considered in the formation of this decision.
Who should pay with the costs associated with the cooktop malfunctioning?
- In August 2023 three burners on the cooktop/hob failed. The tenants say they happened consecutively over a few weeks. When the third had failed they notified the Singhs.
- Because the bosh cooktop was still under warranty as it was new a year earlier, the Singhs arranged for a trade to investigate. When he attended, he lifted the cooktop and found an infestation of cockroaches in the below cavity. As a result, he declined to undertake further investigations. Because the cockroach infestation voided the warranty, the Singhs told the tenants to pay the cost of this investigation which they did. The tenants now seek reimbursement of this cost as they now consider they should not have had to pay it.
- An exterminator was subsequently arranged, paid for by Mr Singh, and the tenants have reimbursed him. They also seek reimbursement of this cost as they feel he misled them as to their liability.
- The Singhs say they were advised that the hob could not be repaired and must be replaced. It is this cost $876.73 (replacement) plus $200 installation that they now seek reimbursement of by the tenants.
- Mr and Mrs Singh feel the tenants should be responsible for all of these costs for the following reasons: i. This was a new build therefore the cockroaches could not have been present at the commencement of the tenancy. ii. The tenants brought in some old furniture and lots of stuff so could well have brought them in with them. iii. The tenants exceeded the number of permitted tenants (having four adults and four children rather than the contracted three adults and two children). iv. They did not keep the property very clean and tidy which could have created the ideal conditions for the cockroaches. v. The neighbours complained they were not tidy tenants. vi. No other properties in the complex have had cockroaches.
- Therefore, they say, the tenants caused the cockroach infestation which has in turn caused the damage to the cooktop.
- The tenants consider the landlords should be responsible for all of the costs because: i. They were not unclean/untidy. ii. They did not have excess furniture. iii. They agree they did have more occupants than as recorded on the tenancy agreement but say the landlords orally permitted this. iv. They did not see any cockroaches or any sign of any cockroaches until the cooktop was lifted. v. They saw exterminator vans outside of other properties in the complex so understand other homes had the same issue. vi. The neighbours house and this one had been treated for a mouse infestation. vii. There is bush behind the property which is where the roaches could have come from.
- There are two issues here: the pests and the damage. Firstly, the law with respect to pests details a joint responsibility. Landlords need to make sure the property is free from pests and tenants need to keep their house in a condition that doesn’t encourage pests. That said, it can and often is considered a maintenance obligation of a landlord’s to treat a property for pests should they be detected.
- I accept the landlord’s submission that as the property was a new build, the cockroaches were not in situ when the tenancy commenced. I also place weight on the written confirmation from the real estate agent responsible for the build who says she has not been notified of any other property in the development suffering such an infestation. It is likely she would be notified given she manages the relationship between the developer and new owners. Although the tenants submit that they saw other exterminators, there is no corroborating evidence supporting this contention.
- The trade has described the infestation as “severe”. It is surprising therefore that the tenants never saw nor heard any other evidence of cockroaches. However, there were 8 busy people in a small three bedroomed townhouse which may account for that.
- I have carefully considered all of the evidence both parties have submitted on the issue. Whilst doing so I apply the evidential burden of proof and as such find it more likely than not that the cockroaches have come into the home because of the way the tenants lived. I make this finding on the basis that there were excess occupants in the home with excess belongings. A crowded home is often ripe for such an infestation as they have plenty of places to hide.
- The roaches would not have been confined to the cooktop space as there would be no food source there for them and as such should have been noticed earlier. This was not just a small number of pests, but a severe infestation. Given the number, it is also more likely than not that they would also have been audible, and possibly visible, especially at night. I therefore find that the tenants are liable for the exterminator cost.
- I turn now to the liability for the replacement of the cook top.
- When damage is alleged, it is for the landlord to prove that that damage is not fair wear and tear and occurred during the tenancy. The onus then shifts to the tenant to prove that the damage was not intentionally done or was not caused by a careless act or omission. There is no contention here that the tenants intentionally caused the damage, the question is whether they were careless in their actions which directly caused the cooktop to malfunction.
- The tenants could not see the cockroach nest as it was under a secured cooktop. The damage was not visible as it was occurring, therefore the only thing the tenants could have done differently was to advise the landlord or get an exterminator earlier. This action however is contingent upon them noticing their unwanted visitors in sufficiently concerning numbers.
- There is no evidence that the property was left sufficiently dirty that a considerable pest infiltration could be anticipated. The inspection notes do not establish this, and the photos provided by the neighbour do not show household rubbish lying around. I do not accept the landlord’s submission that growing vegetables would attract cockroaches. As above, I find it is likely that the overcrowding may have attracted the roaches as there were more places to hide, but I do not find that such numbers could be expected.
- Therefore, whilst I have found that the overcrowding likely led to the cockroach infiltration, I do not find that the tenants carelessly allowed the infiltration to build to the level it did. Although they probably heard or saw some cockroaches, I accept they were not aware of the numbers living below their hob.
- There is no evidence regarding how long the cockroaches would have had to be occupying the site for them to cause such damage, or that they actually did, which I discuss below. Mr Singh vehemently argues that the tenants breached section 40(1)(d) of the RTA by failing to notify him earlier of the hobs stopping. However, there is no evidence that it was a long period between the first hob stopping and the third. Indeed, the prior inspection was only two months earlier. There is also no evidence that finding the infestation two weeks earlier would have mitigated the situation considerably.
- Accordingly, I do not find that the tenants breached s40(1)(d) of the RTA or that they carelessly permitted the infestation to the extent that property would be damaged. Even if I am wrong in that I am not satisfied that it has been established in evidence that the hob needed to be replaced.
- The technician has stated in his report: the hob was dismantled there was a large infestation of cockroaches inside and around the base of the hob, which caused it to short circuit. Hob reassembled and put back into benchtop. Tech advised customer to rectify the infestation and store notified.
- The evidence therefore has verified that there was an infestation of cockroaches under the hob and the hob has short circuited, but that is all. No evidence was provided of any assessment done post extermination as to the extent of the damage, although time post-hearing was provided for this. The evidence does not therefore establish that the hob needed to be replaced.
- Accordingly, I do not find the tenants liable for the cost of replacing the hob. I appreciate that this is frustrating for Mr and Mrs Singh as this is a cost they did not expect or budget for. However, the RTA clearly defines in which situations tenants are liable for damage, and this is not one of them.
- As I have found the tenants not liable for the hob costs, they did not need to pay the trade’s investigation fee. Therefore, I direct that they be reimbursed this cost. Mr Singh did argue that as the tenants had already accepted that cost, they should be held to it, however section 11 of the RTA states that tenants cannot waive their rights under the Act, i.e., they cannot agree to something the Act says they do not need to.
Who is responsible for the damage to the walls?
- It is accepted that there are a number of chips, scratches and marks on the walls. Mr Singh has a quote for $609.50 to repair them which he seeks payment of by the tenants as he says the damage far exceeds fair wear and tear. He says the damage is throughout the house and shows the tenants were excessively rough on the home.
- The tenants say they were not rough on the house, they just lived normally and were as careful as possible with four children.
- In assessing the nature of this damage, I take into account the following: a. The tenancy was just over a year and a half in duration. b. There were eight people living in a relatively small space. This was in excess of the number of people permitted to live in the home (five). c. The size and extent of the marks.
- It is manifest that when a landlord rents premises to a tenant, the tenants will live in the dwelling, and in the process cause some wear and tear. As far as walls are concerned, it would be expected there would be some minor damage such as scrapes, marks or even minor holes when hanging pictures and the like. That is an incident of people living in the premises, and that damage (wear and tear) is ‘compensated’ by way of the rent payments the landlord receives.
- Fair wear and tear can be defined as gradual deterioration of things that are used regularly and reasonably. The following is a helpful definition: “... that brought about by the tenant, and other persons present in or on the premises with the consent of the tenant, either unintentionally or as a normal incident of a tenant’s occupation in the course of the ‘fair’ (or ‘reasonable’) use of the premises for any of the purposes for which they were let.” Taylor v Webb [1937] 2 KB 283 (CA) at 302
- It is only when the damage is in excess of minor damage that it can be considered more than fair wear and tear. As discussed above, the RTA holds tenants liable for careless and intentional damage.
- The landlord consented to three adults and two children in the three-bedroomed property. I find no evidence of any agreement to occupants in excess of that although that was the tenants’ submission. 1 Here there was one adult and two children more than that allowed in this relatively small space. On this basis I am satisfied that the damage to the walls exceeded what could be expected by three adults and two children.
- Having considered the photos provided I am satisfied that the damage was caused by the careless actions of the tenants. The damage was extensive as the marks were on most walls, and some of the chips were large and relatively deep. Accordingly, I find that some of the damage was careless and as such the tenants are liable for the repairs to the walls that exceed fair wear and tear. 2 I note that the tenants had been asked to repair the damage prior to the tenancy ending but did not. They therefore had opportunity to rectify the matter without incurring further cost.
- The landlord’s insurance company will not cover the damage and the amount claimed is less than four weeks' rent. 3 I do however have to be satisfied that the claim is reasonable and takes into account betterment and depreciation. In determining the compensation payable, depreciation must be taken into account. Depreciation is linked to the concept of betterment. Everything is subject to wear and tear and will need to be replaced in time. Where an item has to be replaced as a result of tenant damage, this hastens the process. If the damaged item is replaced with a ‘better’ item, compensation is adjusted to reflect that.
- 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 paintwork at the start of the tenancy and its likely useful lifespan.
- Accordingly, I have reduced the claim slightly to account for depreciation and to reflect that some of the marks will have occurred from fair wear and tear. The reduction also takes into account that the landlord has rented the property out with the damage in situ. I cannot therefore be satisfied that the landlord will have all of the repairs done at this time and as such award for the most obvious and sizeable marks.
Did the tenant leave the property in compliance with their obligations?
Cleaning 1 The landlords also issued a notice to remedy the breach which the tenants subsequently did. 2 See sections 40(2)(a), 41 and 49B RTA. 3 See section 49B(3)(a) RTA.
- Mr and Mrs Singh claim $250 for six hours of their time in cleaning the property after the tenancy ended. They say that in particular the oven and shower were dirty and had to be scrubbed, as well the window tracks were full of flies and dirt. They provided some photos in support of their claim.
- The tenants say that they cleaned the properly before they vacated and were careful to do as much as they could because they cannot afford extra charges. They provided videos showing how they left the home.
- Section 40(1)(e)(iii) of the RTA states that at the end of the tenancy the tenant must leave the premises reasonably clean and tidy. The tenant's statutory obligation is not an absolute standard, and it does not mean that the premises will necessarily be ready for occupation by a new tenant straight away. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord.
- The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined on the basis of the subjective opinion of either the landlord or the tenant. The standard also takes into account fair wear and tear.
- Having assessed the photos and videos provided by both parties, I am satisfied that the tenants did leave the property reasonably clean and tidy. It was not perfect and certainly needs some touching up, but it did meet the statutory standard of “reasonably clean”. Further, the time the landlords claim for is the only time they spent cleaning prior to the next tenancy. As such, this claim must be dismissed.
- I also note that the claim for $250 on the basis of six hours cleaning by Mr and Mrs Singh is excessive. Where an owner undertakes their own work on the property their hourly rate will not be equated to that of a professional. Plants
- When the tenancy commenced the developer had planted some native plants in a small patio area in front of the house. No specific discussion was had between the parties as to who was going to water those plants and as such, no one did. They then died and the tenants dug them up and made their own gardens around the edge. The tenancy agreement is silent as to responsibility for the garden.
- The Singhs now seek the cost of returning the garden to its original condition.
- [The tenant/s] argues that she should not have to pay this cost. She says no one told her to water the plants, neighbouring properties have had their plants die off, she did not know they were natives and importantly, this was not raised until the end of the tenancy. She says although it occurred early on in the tenancy, it was not raised at any of the inspections, until the issue with the cooktop arose.
- If plants in a tenanted premise require particular care, it should be a part of the agreement as to what that care is and who should do it. These plants required extra watering however doing so was not a part of the tenancy agreement. The tenants are therefore not liable for their demise.
- However, [The tenant/s] then removed the plants ensuring there was no chance of their resurrection. This is an alteration to the premise which required landlord consent (clause 6 of the agreement), which they did not have. Accordingly, I find the tenants liable for this removal.
- However, this situation occurred early on in the tenancy and the landlord took no steps. They conducted regular inspections so should have seen that the plants had been removed. Parties do have a statutory requirement pursuant to section 49 of the RTA to mitigate any loss they may suffer from a breach of the tenancy agreement. Had they raised this earlier, the tenants may well have been able to reinstate the plants or at least replace them during their tenure.
- In summary, the tenants are not liable for the demise of the plants, but they are for their removal. That liability however is reduced as the landlord did not action the issue earlier. I also note that the landlord has not replaced the garden but tenanted the property without the plants. The quantum of their loss is not therefore substantiated. There is nothing to stop them replacing the plants themselves at a lesser cost than quoted by the landscaper.
- Having considered the situation holistically, I consider it just 4 that the tenants pay a small amount of compensation to reflect their involvement in the issue. I therefore direct that $100 compensation is paid for the removal of the plants. Filing fee
- As both parties have been partially successful in their applications it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall. Suppression 4 Pursuant to section 85 of the RTA
- Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. This includes being successful in their application or in their defence to an application. The tenants have been successful in part in their defence and claim, accordingly I approve their application for suppression. The landlord did not seek suppression.