Published tribunal order
Tenancy Tribunal case 4843282 — Rent arrears at 618A George Street, North Dunedin, Dunedin 9016
Decided 28 Aug 2024 · Published 28 Aug 2024 · Application 4843282
Landlord favoured
- Rent arrears
Order
- Nick McDonnell, Rochelle Goodmon and Wade Thompson must pay Barbara J. Kennedy $1,388.44 from the bond, calculated as shown in table a) below.
- The Bond Centre is to pay the bond of $660.00 (3110303-017 to Barbara J. Kennedy immediately.
- Rochelle Goodmon and Wade Thompson must pay Barbara J Kennedy $1,632.71 immediately as per table b) below:
- The application for further arrears of $6,840.00 is dismissed. a)Description LandlordTenant Rent arrears from 14/4/2023 to 10/6/2023$1,881.00 Filing fee reimbursement$20.44 Total award$1,901.44 Bond$1,901.44 Total payable by Tenant to Landlord$0.00
Reasons
- The landlord and one tenant, N McDonnell attended 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.
- The tenancy was for a fixed term from 1/1/2023 to 30/12/23 at $513.00 rent per week.
- One tenant R Goodmon had occupied the tenancy in 2022, with different flatmates and initially signed the 2023 agreement with W Thompson and two other individuals who subsequently left.
- N McDonnell moved into the premises in March and signed the tenancy agreement on 14/4/2023.
How much is owed for rent?
- The landlord sought rent arrears to 30/12/2023 of $10,529.00 and provided rent records.
- I have carefully looked at the landlord’s rent records and find that she has mistakenly claimed 53 weeks rent, not 52 weeks and the amount should be $10,089.00.
- After an incident at the end of May, N McDonnell left the premises and corresponded with the landlord about being released from his tenancy.
- In September N McDonnell suggested that he was told by R Goodmon to stop paying rent, which he did.
- The landlord agreed that at the time N McDonnell signed the tenancy agreement she failed to let him know there were rent arrears owing.
- In addition, the landlord confirmed that when she found the premises abandoned in early June, she did not obtain a termination order from the Tribunal.
- Nor did the landlord obtain the consent of the tenants to undertake repairs on the premises.
- Although on the fact of the agreement the tenants are jointly and severally liable for the rent arrears, this is not the case for N McDonell prior to him signing the tenancy agreement on 14 April.
- I have therefore made two orders for the arrears.
- First for all three tenants from the 14/4/2023 to 10/6/2023.
- Second for two of the tenants from 1/1/2023 to 13/4/2023.
- An order is made for the $660.00 bond held under number 3110303-017 to be refunded to the landlord, she already having received the $1,320.00 from bond 5740799-011.
- No award is made for rent arrears after 10/6/2023 because I consider the landlord is estopped from claiming arrears after she re-entered into possession, without a termination order or consent, and undertook work on the premises.
- While the landlord is not required to mitigate loss under section 49 when premises are abandoned, I consider this does not mean the landlord can enter the premises and do work without at the very least the consent of the tenants or preferably a termination order from the Tribunal.
- To do so means that the tenants are unable to return to the premises, while still being expected to pay rent.
- Moreover, I consider the landlord mislead N McDonell in the email correspondence between them when on 18/6/2023 she suggested she could not let him out of the tenancy and that he should ring Tenancy Services for options.
- Taking into account the reasons why N McDonell left the tenancy and his concerns for his safety I consider the landlord could have been more helpful, rather than just dealing with R Goodmon.
Are the tenants 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.
- The landlord sought compensation of $343.27 as follows: a. $108.76 for repairs to a bedroom door b. $161.00 for repairs to a wardrobe door c. $73.51 for paint and materials for repair of the wardrobe door.
- In support of the claim the landlord provided two invoices and gave evidence about an agreement between herself, R Goodmon and W Thompson about payment.
- N McDonnell submitted that the damage occurred prior to him moving in and that the only damage while he resided in the premises was to the oven door which one of the other tenants had paid for.
- 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.
- I am satisfied that damage was caused during the tenancy to a bedroom and wardrobe door and was more than fair wear and tear.
- The amounts awarded have been added to the order against R Goodmon and W Thompson because the damage occurred before N McDonnell signed the tenancy agreement.
- Barbara J. Kennedy has largely succeeded with the claim I have awarded the filing fee.