Published tribunal order
Tenancy Tribunal case 4880184 — Property damage at 208C Murphys Road, Flat Bush, Auckland 2019
Decided 4 Oct 2024 · Published 4 Oct 2024 · Application 4880184
Landlord favoured
- Property damage
Order
- The Bond Centre is to pay the bond of $3,200.00 (6277751-001) immediately apportioned as follows: Gordon Brkic & Ema Brkic as trustees of the Madeg Trust: $1,714.20 Ratilal Anop: $1,485.80
- The order in respect of the bond is made on the basis of the following orders for compensation:
Reasons
- Both parties attended the hearing. Ms Brkic represented both trustees.
- These claims concern the rental of a brand new property in Flat Bush, Auckland. The tenancy began on 1 August 2019. Background
- The tenancy ended on 4 November 2023 after the landlord served the tenant with a 90 day notice terminating the tenancy on the basis that they had to do extensive repairs and renovations.
- The parties filed claims in the Tribunal as follows: a. The tenant applied for work orders, compensation, exemplary damages, breach of Healthy Homes Standards and reimbursement of the filing fee. b. The landlord applied for termination of the tenancy, possession of the property and reimbursement of the filing fee.
- Those matters (TT4586350 and TT4666890) were heard together on 23 October 2023. The tenant’s claim was dismissed and the Tribunal made an order for termination and immediate possession in favour of the landlord, and awarded the filing fee to the landlord.
- The landlord has now applied for rent arrears, compensation for extensive damage, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenant has now applied for compensation for failing to maintain, compensation for moving costs and for engaging a plumber to inspect the main bathroom, exemplary damages for unlawfully applying to terminate the tenancy and compensation for overpaid water.
- This matter was part heard before me on 3 July 2024. At that stage the tenant had only just filed his claim and the landlord had not filed all relevant evidence. I therefore made orders for the filing of further evidence and set the matter down for a further hearing. Onus and evidence
- Each party has the burden of proving their claim to the civil standard (on the balance of probabilities). Claims are proved by producing supporting evidence which may include documents, photographs, witness statements, email and text messages and invoices.
- For the sake of brevity I have not referred to all of the evidence in this decision but the parties can be assured that I have carefully considered all of the evidence. The landlord’s claims
How much is owed for rent?
- The landlord said that the rent was $800.00 at the start of the tenancy and that they did not increase the rent at all until 1 July 2023. The landlord produced a notice to increase rent together with an email showing that the notice was sent on 27 May 2023.
- The landlord produced a rent summary showing that the tenant had continued to pay the sum of $800.00 until the end of the tenancy and so arrears had started to accrue in the sum of $1,270. However the tenant had paid beyond the end of the tenancy leading to an additional payment of $228.50 and so the total arrears are $1,041.50.
- The tenant said that: a. the rent was too high and that the tenants in the surrounding units were paying less per week; and b. that the Tribunal had ordered that the rent was $800.00 per week in an order dated 3 November 2023.
- It is open for tenants to bring a claim seeking to reduce rental on the basis that it is substantially above marked rates, but I do not have that claim before me. The tenant has signed a tenancy agreement recording rental of $800.00 per week and the landlord has served a notice in the proper form increased the rent to $870.00 per week (more than 12 months after the start of the tenancy).
- I have reviewed the Tribunal order dated 2 November 2023. I see that the Tribunal made an order staying enforcement of the orders made on 24 October 2023 on the condition that the tenant continued to pay rent of $800.00 per week but the Tribunal did not reduce the rent.
- Having considered all of the evidence I find the landlord’s claim for rent in the amount of $1,041.50 to be 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 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 claimed that the tenant had caused extensive water damage in all of the bathrooms, that the main bathroom in particular required extensive repair and replacement of fittings, that the vanity in the toilet had to be replaced, that the carpet outside the main bathroom was damaged, that the ceiling in the room above the main bathroom had water damage and needed to be repaired, that the decking outside was covered in a thick layer of washing powder and had to be water blasted, the kitchen tap was broken, and that the garage door was damaged.
- The landlord produced the following invoices for damage: a. $3,220.00 for damage to the interior of the property (although this invoice includes repair to the garage door); b. $287.50 for shower repair; c. $40.25 to repair the tap in the kitchen; and d. $21.91 for a toilet roll holder.
- The landlord did not have any photos from the start of the tenancy but I accept that property was brand new at the start of the tenancy. Nobody had lived in the property previously.
- The landlord provided a number of photos from when the tenant vacated the property but did not provide the move out inspection report was it was difficult to determine the extent of the damage and the areas affected.
- The tenant agreed that there had been water damage in the main bathroom but said that there was a gap in the shower and that water would seep out onto the floor and that the floor angled slightly towards the door which caused the water to flow out onto the carpet.
- The tenant produced an email from a plumber dated 21 October 2023 noting that the toilet has a supply of hot water to the cistern, there is extensive damage to the vanity cabinet, bottom of bathroom door, mirror and ceiling/mid floor space, that the shower cabinet is not water tight and a mixture of water is finding it way onto the bathroom floor and the tiles fall away towards the door.
- The landlord provided her own evidence on this issue (including correspondence from the plumber and property manager about the state of the bathrooms when they visited) and said that hot water was installed up to the cistern but not connected, in case a bidet was installed in the future, and that the shower was as watertight as a shower can be but that inevitably leaks can occur, particularly when water is angled towards the seals, and that in such an instance a bath mat and mopping is necessary.
- Having heard from the parties consider that the landlord has proved that that damage has occurred during the tenancy and that the tenant has not disproved liability for the damage. The water damage is considerable and could not have occurred from water escaping under the shower, particularly if a bathmat had been used and the floor mopped afterwards. I accept the landlord’s evidence that the hot water connection in the bathroom was for a bidet and that it was not connected. I also accept that there has been damage to the outside deck and that it had to be waterblasted.
- It is very difficult to precisely determine the exact extent of the damage as the photographs were not labelled. I was told that there are four bathrooms but I was only referred to photos of the main bathroom and the toilet. There was clearly extensive damage to the ceiling. I accept that there was a large amount of washing power residue on the deck that needed to be waterblasted. I am unable to determine whether the kitchen sink was broken, the extent of damage to the garage door (and whether that was wear and tear).
- It is difficult for me to precise in awarding compensation for the damage that has been proven as the invoices provided as the invoices provided by the landlord were not itemised, except the small invoices.
- In the circumstances I have considered the amount of damage proved in the photos, the email from the builder setting out the matters covered by the invoices, the evidence given by Ms Brkic today, and have made my own assessment on the basis of the information available.
- I consider that the portion of the invoices (in total) that relate to the damage that is proved to be $2,000.00 and I order compensation of that amount.
- In making this award for compensation I have 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.
- I note for completeness that the tenant sought to recover the cost of engaging a plumber to prepare a report. I do not consider that there is any basis for awarding compensation to the tenant for obtaining this report. The tenant’s claim Maintenance
- The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 to maintain the premises in a reasonable state of repair.
- However I noted at the hearing that the tenant’s claim for failing to maintain the property had already been heard by the Tribunal and was dismissed on 24 October 2023.
- These claims have already been determined and are therefore dismissed. Water rates
- The tenant said that he paid a lump sum of water each fortnight and that he has overpaid in the amount of $1,347.34.
- The landlord said that the tenant preferred to have the landlord manage the payments for water and although it was an administrative hassle the landlord did so. Ms Brkic said that she had not refunded the amount of water due to the outstanding rent but agreed that the sum claimed was owing to the tenant.
- I therefore order reimbursement to the tenant as agreed. Compensation for moving and storage costs and exemplary damages
- The tenant claims that the landlord has breached their obligations under section 60AA.
- Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
- Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
- The tenant accepted that the tenancy was terminated and possession was granted immediately to the landlord on 24 October 2023 but said that they sought a rehearing and that a stay of enforcement was granted on 2 November 2023 pending a hearing to determine whether a rehearing should be granted.
- Despite the stay being granted the tenant said that they received correspondence from the landlord by text on 3 November threatening to enforce the order which caused them great distress.
- The tenant said that they had to urgently find storage for their things and transport them. He provided and invoice for transporting goods for $540.00 and for storage in the amount of $50.00 and $602.50 (being a minimum 1 month fee).
- Ms Brkic said that the landlord needed possession of the property to do extensive repairs and that she felt that the tenant was simply trying to delay moving out yet again. She said that despite being awarded immediate possession the landlord had agreed that the tenants could move out on Saturday 4 November 2023. She said that the tenant’s wife indicated that they did not intend to move out and the trustees became very frustrated by what they saw as unwarranted further delay. In addition Ms Brkic said that she had not yet received notice of the stay as she was away at the time.
- Having considered the matter carefully I do not consider that the landlord is in breach of section 60AA as the tenancy had already been terminated. The landlord was not giving notice to terminate the tenancy but was instead seeking to enforce the order, although in circumstances where a stay had been granted.
- In my view the tenant incurred costs because he did not take steps to move out of the property in response to the notice terminating the tenancy and failed to oppose an order for termination at the hearing on 24 October 2023. The costs were not incurred due to any breach by the landlord.
- Despite finding no breach of 60AA by the landlord I record that the landlord’s message to the tenant was quite inappropriate and unnecessarily personal. I will not record the content here as both parties at the hearing today expressed a wish to put this matter behind them.
- As I have not found a breach of section 60AA by the landlord it follows that exemplary damages are not awarded. Filing fee and name suppression
- As neither party has been substantially successful I have not refunded the filing fee. Neither party is entitled to an order for name suppression.