Published tribunal order
Tenancy Tribunal case 4879064 — Property damage at 89A Clayton Road, Mangakakahi, Rotorua 3015
Decided 25 Jun 2024 · Published 25 Jun 2024 · Application 4879064
- Property damage
- Cleanliness
Order
- [The tenant/s] must pay Russell Hardie Limited as agent for Rocksolid Family Trust $1,534.37 immediately, calculated as shown in table below.
- This order incorporates the Tribunal order made on 21 February 2024 under application 4748422.
Reasons
- Only the landlord attended the hearing, represented by Mr Jansen. There was no appearance by the tenant.
- I am satisfied that the tenant has been served with the landlord’s application and so the hearing proceeded in the tenant’s absence.
- The landlord has applied for compensation, exemplary damages and reimbursement of the filing fee following the end of the tenancy.
- The tenancy began on 29 November 2019. The Tribunal made an order terminating the tenancy on 21 February 2024 and awarded the landlord the filing fee of $20.44 (NZTT 4748422). The previous order is incorporated into this order for enforcement purposes.
- The bond has already been refunded to the landlord to cover some of the costs claimed by the landlord in this application. I have therefore deducted the bond from the amounts claimed but have made no orders in respect of the bond.
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. Cleaning
- The landlord says that tenant did not leave the premises reasonably clean and tidy, and that very little cleaning had been done. The landlord produced an invoice from Lilies cleaning services for cleaning in the amount of $402.50.
- I have reviewed both the ingoing and outgoing inspection reports and photos. Tenants need to leave a property reasonably clean and tidy but they do not need to leave the property in perfect condition and ready for a new tenant to move into. It is to be expected that landlords will need to do some additional cleaning in between tenancies, and particularly following a tenancy of this duration. In my view much of the cleaning by the landlord is deep cleaning that a landlord would ordinarily have to do after a tenancy of this length (for example cleaning windows inside and out, washing curtains) and some is maintenance (removing old shower curtain, cleaning ceiling vent). Having reviewed the photos, reports and reviewing the invoice I consider that the portion of the cleaning invoice that the landlord should be compensated for is $100.00. I estimate this to be the amount required to get the property to the “reasonably clean and tidy” standard.
- The landlord said further that there was dog excrement on the floor in the lounge and bedrooms because the tenants had got a puppy towards the end of the tenancy. The landlord produced and an invoice for carpet cleaning from Jet Vac Carpet Cleaning in the amount of $200.00
- I have carefully reviewed the outgoing inspection report but the photos do not show any dog excrement on the carpet and there is no record of this in the notes regarding condition or the notes of extra cleaning required. I note in addition that the ingoing inspection report in 2019 records stains, burns and areas of discolouration in the lounge. This claim is not proved. I note for completeness that it is to be expected that the landlord would likely need to have the carpet cleaned after a tenancy of this length.
- The landlord says that the lawns were not mowed and that an area above a large retaining wall was very overgrown. The landlord produced photos showing the overgrown lawn. The landlord produced an invoice from Ryans in the amount of $75.00 for “lawn mowed and edged. Garden weeded. Sprayed weed killer along retaining wall. Removed clippings”. This claim is proved. The sum of $75.00 is awarded to the landlord.
- The tenant did not remove all rubbish. The exit inspection photos show a small amount of rubbish stacked tidily in the lounge, but then further rubbish throughout the house including a mattress, pillows and towels. There was also 40-gallon drum (which looks to have been used as an incinerator) left in the garden and the remains of a trampoline.
- The landlord produced an invoice in the amount of $480.00 for rubbish removal. The amount claimed is reasonable. The sum of $480.00 is awarded to the landlord.
- The tenant did not return the keys. The landlord produced an invoice from Armstrong Smarter Security in the amount of $182.00 to re-key the lock and provide new keys. This claim is proved and the amount of $182.00 is awarded to the landlord.
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 that their insurer had not accepted a claim because the damage appeared to be intentional.
- The landlord claimed compensation from the tenant for damage as set out below: Broken window
- The lounge window was broken during the tenancy. The tenant taped up the window but did not repair it. The landlord produced an invoice from Chris Smith Glass in the amount of $216.49 to reglaze the lounge window. This claim is proved. The landlord is awarded the sum of $216.49. Curtains
- The landlord said that the net curtains in the lounge needed to be replaced and that curtains needed to be reinstated in three of the rooms. The landlord produced and invoice from Sunny building and maintenance in the amount of $147.83 to do this work.
- It is not clear from the evidence why the net curtains needed to be replaced. The outgoing inspection photos of the net curtains do not disclose any damage. The photos do show that some of the curtains have come off their hooks in places but that does occur over time. In my view this work is wear and tear and should not be the responsibility of the tenants.
- The landlord’s claim in respect of the curtains is dismissed. Repairs to walls and repairs/replacement of doors
- The landlord said that the tenant left holes in various walls and doors. The landlord produced photos of the damage.
- The landlord produced an invoice dated 29 March 2024 in the amount of $2,760.00 for repairing the damage. Although the invoice set out very little detail it was based on a detailed quote which was provided by the landlord.
- The quote records that the work is to remove 8 damaged internal doors and replace with new doors, fill hole and sand 2 internal doors, supply 5 new lightshades, reinstated smoke alarm, replace net curtains in the lounge, replace light switch over in bedroom, remove gib board in right end bedroom and supply and install new jib board in the right end bedroom. The quote also relates to outside work and is to remove and replace burnt fence railing and six missing fence palings, repair, paint hole in cladding, and clean paint off by the ranchslider door.
- I have carefully reviewed all of the evidence filed. The landlord has proven that the following damage occurred during the tenancy: a. Hallway door, bathroom door, bedroom 2 door, bedroom 3 door, toilet door, laundry door, hallway cupboard door, bedroom 2 wardrobe door (8 doors); b. Bedroom 3 wall, bedroom 2 wall; c. Hole in exterior cladding; d. Lightshades missing; e. Burnt fence railing and missing palings; and f. Paint by ranchslider door.
- In considering compensation I need to consider 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 must take into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
- I consider that some depreciation is required, particularly for the doors. The ingoing inspection report records that various doors have old patches and imperfections (lounge, bathroom, toilet, bedroom) and so I consider that these doors were due for replacement. The other doors were not new and the landlord now has new doors (and lightshades). The invoice also includes a sum for net curtains (already dismissed).
- Taking all matters together I consider that the sum of $1,500 should be awarded to the landlord for the matters included in this invoice. Painting
- The landlord has also made a claim for various painting including the back bedroom (plaster new wall repaired by builder, fill, sand rest of room and recoat all walls), doors throughout the house (11 @100.00 each), repair holes in kitchen walls and give kitchen a coat of paint, and repair hole in end bedroom wall a, fill and paint one wall. The total amount claimed is $2,400.
- Some depreciation is also required in this instance. I could only find damage to 8 doors proven. Almost all of the doors were in need to painting, particularly given the length of this tenancy. The kitchen walls and bedroom walls were in average condition at the start of the tenancy.
- I consider that the sum of $1,100 is appropriate in all the circumstances. Electrical fittings
- The landlord has also claimed the sum of $275.80 for replacing two vertical power points (kitchen under wall cupboard and living room by phone jack).
- However the landlord has not proven that the damage occurred during the tenancy. I have carefully examined the exit inspection report and can not find any record of damage to these power points.
- The claim for electrical repairs is not proven and is dismissed.
Is the landlord entitled to exemplary damages?
- The landlord has sought exemplary damages from the tenant on the basis that she has breached her obligations under section 40(3A)(a) of the RTA.
- Section 40(3A)(a) of the RTA provides that the failing, without reasonable excuse, to quite the premises on termination of the tenancy is an unlawful act.
- At the hearing the landlord did not provide any evidence that the tenant had failed to quit the premises on termination.
- This claim is not proven and is dismissed.
- Because Russell Hardie Limited as agent for Rocksolid Family Trust has substantially succeeded with the claim I have reimbursed the filing fee of $20.44.