Published tribunal order
Tenancy Tribunal case 4917414 — Property damage at 146 Cameron Avenue, Te Awamutu, Te Awamutu 3800
Decided 4 Sept 2024 · Published 4 Sept 2024 · Application 4917414
Mixed / unclear
- Property damage
Order
- Davina Kirikiri to pay Bj And Tm Irwin Family Trust (Trustees: Brenton James Irwin And Tarsha Marie Irwin And Bailey Ingham Trust Ltd) $1,630.44 immediately, calculated as follows: Award DescriptionAmount Cleaning of the premises (80 hours, two persons at a reduced hourly rate)$800.00 Removal of a trailer load of rubbish (no labour claimed)$85.00 Compensation for oven damage (replacement cost after considering betterment) $425.00 Compensation for cabinet damage (portion of replacement cost for matching cabinetry) $300.00 Reimbursement of the filing fee$20.44 Total$1,630.44
Reasons
- The Landlord attended the hearing. The Tenant did not attend.
- The Landlord has applied for compensation.
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 the premises reasonably clean and tidy and did not remove all rubbish. I rely on the Landlord’s oral evidence and photographs. I award $800.00 for cleaning (80 hours, two persons, at a reduced hourly rate). I ward $85.00 for removal of a trailer load of rubbish as invoiced (no labour claimed).
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 occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
- 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 following damage was caused during the tenancy: a. Oven damage – broken door – the damage is more than fair wear and tear, and the Tenant has not disproved liability for the damage. Oven could not be restored. The Landlord tried to replace the oven door, but it would not work properly. The oven would be 14-18 years old, although it was in good condition at the start of the tenancy. The Landlord purchased a replacement for $675 and said $425.00 would be sufficient compensation because it should not have had to purchase a new oven. I agree and award the $425.00 claimed. b. Cabinet damage – broken door – the damage is more than fair wear and tear, and the Tenant has not disproved liability for the damage. The cabinetry, while not brand new at the start of the tenancy, was in good condition. I award $300.00 for the replacement cabinet, being a portion of the Landlord’s cost in replacement all kitchen cabinetry to match.
- 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.
- Because Bj And Tm Irwin Family Trust (Trustees: Brenton James Irwin And Tarsha Marie Irwin And Bailey Ingham Trust Ltd) has wholly succeeded with the claim I must reimburse the filing fee ($20.44).