Published tribunal order
Tenancy Tribunal case 4904534 — Property damage at Unit 4, 365 Gloucester Street, Linwood, Christchurch 8011
Decided 25 Jul 2024 · Published 25 Jul 2024 · Application 4904534
- Property damage
- Cleanliness
Order
- [The tenant/s] and [The tenant/s] to pay Fraser Flynn Limited as Agent for Robert Seitsamo as Trustee of the Seitsamo Family Trust $1,310.44 from the bond, calculated as shown in the table below.
- The landlord’s claims for damage to electrical sockets and lawn damage are dismissed.
- The Bond Centre is to pay the bond of $1,960.00 (6447649-006) immediately apportioned as follows: Fraser Flynn Limited as Agent for Robert Seitsamo as Trustee of the Seitsamo Family Trust: $1,310.44 [The tenant/s] and [The tenant/s]: $649.56
Reasons
- Mr Ternus attended the hearing for the landlord. Both tenants also attended.
- The landlord has applied for compensation, payment of the bond, and reimbursement of the filing fee following the end of the tenancy. Law
- The Residential Tenancies Act 1986 (the Act) provides that at the end of the tenancy the tenant must leave the premises reasonably clean and tidy.
- The tenant must not carelessly or intentionally damage 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.
- 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).
- 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).
- 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. Claims Lawn
- The landlord claims $599.15 to reinstate the small lawn at the rear of the premises.
- The premises were new at the start of the tenancy and the lawn had been newly laid. As well as being an area for the tenants to sit outside, the rear area gives access to the washing line and the bins.
- The photographs taken at the end of the tenancy show the unpaved area to be bare ground in places with other patches of dead grass and weeds.
- The tenants said that they had to walk over the lawn to use the clothesline and to access their bins.
- Relevantly, the Act provides that the tenant must leave the premises reasonably clean and tidy. With respect to garden area, that generally means removing any rubbish, keeping the grass mowed and removing weeds from beds as well as, in some cases, trimming low hedges and shrubs.
- Except to the extent of the bed along one side of the area, no breach of those obligations is alleged. I accept that the tenants needed frequently to walk over the grass and a combination of that and general attrition has resulted in the lawn looking as it does. In my view that is fair wear and tear.
- The bed covered in weeds will need attention and that is the tenants’ liability.
- I assess the cost of attending to the bed to be $100 and award that. Otherwise, the claim is dismissed. Wall Repairs
- There was damage to walls and woodwork such as door frames and windowsills during the tenancy. Some of the damage is beyond fair wear and tear.
- The tenants said that some damage occurred when a bed was moved down stairs. They said that the stairs were narrow, and they denied that the damage was careless. In my view, the tenants should have been able to move furniture in the premises with causing damage if they were careful. Therefore, the damage was careless.
- Other damage appears to have been caused by their young children playing with toys.
- The tenants said that some damage to windowsills was caused by condensation from windows pooling on them. The nature of the damage shown in the photographs makes that unlikely in my view.
- Some of the damage is fair and tear. I note that with newly built properties, the paintwork is often less than optimal and where paint has chipped off windowsills for example, the paint may well have been fragile. Over a two-year tenancy as in this case, some paint chips may be expected.
- In my assessment an award of 75% of the quoted amount for repairs and painting is reasonable and that is what I have awarded. Carpet Cleaning
- Photographs showed there to be stains on the carpet in several places which the tenants said were caused by their children. Some award is required for the cost of treating the stains.
- But most of the quotation for carpet cleaning relates to steam cleaning the carpet, not stain treatment. The only evidence provided that the carpet needed general cleaning are photographs showing a few small deposits on the carpet which can most probably be cleaned without then need for a full steam clean. The landlord has not, therefore, proved that a full professional clean of the carpet is required.
- I have made an award of $150 to cover stain removal and spot cleaning. Electrical Repairs
- The landlord claims $491.63 to repair damage to some power points.
- The photographs show that some power points have suffered damage and have been repaired with glue. The tenants admitted to repairing them but said that the damage occurred due to normal use and that the fittings themselves were defective and needed to be replaced.
- The landlord disagrees and says that impact or other unreasonable force are the likely cause of the damage.
- This is something of a conundrum. Neither explanation for the damage is likely in my view.
- Impact damage is unlikely because there is no other damage near the power points and to damage the fittings alone would require a very precise application of force.
- It also seems unlikely that the fittings themselves are faulty and there is no independent evidence to support that theory. I do note however that there is some evidence of paint inside some of the fittings.
- In these circumstances and am not willing to hold the tenants liable for the damage. The cause is unexplained and no credible scenario implicating the tenants has been shown. I have therefore dismissed the claim. Filing Fee
- The landlords have had significant success and so I have awarded the filing fee. Bond
- The bond has been split to give effect to my decision.