Published tribunal order
Tenancy Tribunal case 4911937 — Rent arrears
Decided 28 Jan 2025 · Published 28 Jan 2025 · Application 4911937
- Rent arrears
- Property damage
- Cleanliness
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
- Milton Manu Bennett and Jenny Bennett must pay [The landlord/s] $10,525.14 immediately, calculated as shown in table below.
- The monetary orders of the order dated 28 August 2024 are incorporated into this order. That order cannot be enforced.
Reasons
- The landlord attended the hearing, conducted via video. Ms Kiaxin Huang represented the landlord. The tenants did not join and a call out was made. The call went unanswered and to voicemail. I was satisfied adequate service had completed and I continued with the hearing after the call went unanswered.
- The first order (28 August 2024) was made after the initial hearing. The order released the bond to the landlord and made orders for rent arrears, water rates and the filing fee. These orders are included in this order. That order suggested an opportunity for the tenants to avoid further costs by acting promptly in returning the keys and remotes. That did not occur.
- Given the respondents had not been served with the new evidence by the date of the 25 November 2024 hearing (attended by both parties), the matter was adjourned a final time for adequate service to occur. The tenants were advised via that order how they should contact the Registry and confirm their contact details and to ensure they receive the evidence before this 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 rent arrears, water rates and filing fee have already been determined and awards made as ordered 28 August 2024.
- The landlord confirms claims (and amounts sought) requiring determination now were the following: a. Replacing sliding door lock and materials $474.95 b. Deck fixing and materials $720.00 c. Garage Door remotes $167.90 d. Replace the front entrance screen door lock cylinder, 2 new keys supplied $115.00 e. Air conditioner remote controls $182.85 f. Central vacuum damage fix $385.00 g. Interior damage and paint damage fix $2,668.00 h. professional cleaning services $750.00
- The total compensation claim was for $5,463.70.
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.
- The tenant did not leave all of the premises reasonably clean and tidy. The landlord produced an invoice for $750.00 as well as a series of exit photos. I have reviewed the invoice and the photos. While some areas required further cleaning, I do not find the extent to match the invoiced amount claimed. I have adjusted downwards the award to $450.00 to more appropriately align with the effort evidenced.
- While there was minimal rubbish, an abandoned couch outside had to be removed and disposed of. The invoiced cost for this was $200.00 and is awarded.
- The tenant did not return all keys and remotes. The front screen door required replacement keys at a cost of $115.00. The sliding door was broken and replaced at a cost of $474.95. The garage door ($167.90) and heat pump ($182.85) remotes were missing and replaced by the landlord for the invoiced costs as shown.
- The amounts ordered are 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 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.
- “Fair wear” is deterioration caused by the reasonable use of the premises. “Fair tear” is deterioration caused by the ordinary operation of the forces of nature. Importantly, intentional or careless damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation. a. A hole in a bedroom wall was proven via a photograph. b. A burnt area of decking timber was proven via a photograph.
- The landlord provided an invoice for $2320.00 for repairs to holes in the living room and two bedrooms. That invoice also itemised $570.00 for a repair to the front door where a section of wood near the lock had broken off. Lastly, $350.00 was claimed for painting the damage deck.
- The damage to the bedroom wall and deck is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- However, the extent of repairs to the walls and deck are far in excess of the proven damage. The premises has been prepared for sale and is currently listed. That online listing was shared with the landlord via the video conferencing share function together during the hearing. The presentation is very good and the overall condition of the interior and deck is markedly improved from even the commencement condition.
- 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 considering depreciation I have taken into account the age and condition of the interior walls and deck at the start of the tenancy and their likely useful lifespan.
- I have awarded $200.00 towards the cost of repair to the hole in the bedroom wall and $80.00 towards the deck repair. The photos do not show holes in other walls. I consider the bulk of the invoiced effort to be betterment, possibly instigated to assist in selling.
- I dismiss the claim for the central vacuum connection ($385.00). The damage has not been proven as more than wear and tear. Filing fee
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Suppression
- Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
- The landlord requested suppression in its application. As it has been substantially successful, suppression is ordered.