Published tribunal order
Tenancy Tribunal case 4919913 — Property damage at 4A Aspen Place, Owhata, Rotorua 3010
Decided 26 Aug 2024 · Published 26 Aug 2024 · Application 4919913
Mixed / unclear
- Property damage
- Cleanliness
Order
- Melissa Tara Smith is to pay Eves Realty Limited $10,844.01. AwardAmount ($) Key Accessories - Changing of Locks$271.00 Rubbish Removal - Bin Boys - Skip Bin$490.00 Additional Rubbish Removal - Allround Property Services$655.50 Cleaning of the Property - Lillies Cleaning Services$977.50 Interior Damage - KDS Builders Invoice$4,895.63 Stove - ShopZone Invoice$834.00 Carpet - VanDyks Carpet Quote$2,500.00 Power Meter - Connor Electrical Invoice$221.38 Filing Fee Reimbursement$20.44 Total$10,865.45
Reasons
- The Landlord party attended the hearing. The Tenant did not attend.
- The Landlord has applied for rent arrears, compensation, and reimbursement of the filing fee following the end of the tenancy.
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 failed to meet these obligations. The premises were not left reasonably clean and tidy, keys were not returned, and significant damage was evident throughout the property (dealt with below): a. Key Accessories - Changing of Locks ($271.00): Keys were not returned by the Tenant, necessitating the change of locks. This claim is approved. b. Rubbish Removal - Bin Boys - Skip Bin ($490.00): The cost of a skip bin for rubbish removal is approved, as the Tenant did not remove their rubbish from the property prior to vacating the tenancy. I approve this claim based on the Landlord’s oral evidence and photographs as to the state of the premises at the commencement of the tenancy and at the end. c. Additional Rubbish Removal - Allround Property Services ($655.50): Additional rubbish removal was required, and this claim is approved also with reference to the Landlord’s oral evidence and photographs as to the state of the premises at the commencement of the tenancy and at the end. d. Cleaning of the Property - Lillies Cleaning Services Plus ($977.50): The property was left in an unclean an unhygienic state. The cleaner performed a complete house clean, including walls, ceilings, doors, kitchen, laundry, bedrooms, and other areas, charging $50 per hour for 21 total hours of work across two days, resulting in a total charge of $1,207.50 including GST, which is less than the final amount claimed in the invoice. e. Landlord’s Accommodation Claim ($528.44): The Landlord’s claim for accommodation is not approved, as it is considered a business expense and unrelated to the Tenant’s breaches directly. I consider the Landlord could bill for work done to rectify the Tenant’s breaches, but not to travel from outside of town and to find accommodation where it chooses to conduct its business.
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. Interior Damage - KDS Builders Invoice ($4,895.63): Multiple damage event including multiple holes in the walls (lounge, hallway, bedroom, bathroom), doors off their hinges, damaged locks, and extensive wear requiring repainting. Given the nature and extent of the damage as evidenced in the Landlord’s photographs, I find, on balance, these are intentional damage events and award the full amount of the repairs given, at a best estimate, 31 to 40 hours of labour (at $75/hour) was required, in addition to the cost of hardware. b. Stove - ShopZone Invoice ($834.00): The stove was in good condition at the start of the tenancy. Due to concerns about cleanliness, it was replaced with a second-hand unit. Food and other organic material had become so engrained inside the stove that it was no longer practical to clean. The replacement was necessary due to the Tenant's failure to maintain the appliance. The stove replacement was itself second hand and an exact or near match. c. Carpet - VanDyks Carpet Quote ($4,188.00): The carpet, likely original from the 1980s, was reported to be in the worst condition seen in 10 years, although, that is an out-of-court opinion by a carpet technician not present at the hearing to give evidence. I am satisfied based on that opinion and the Landlord’s further evidence as to the state of the carpet, including photographs and evidence concerning deliberate soiling of the carpet, its severe deterioration justified replacement, and the Tenant is liable considering the age and condition of the carpet at the start of the tenancy. A portion of this claim is approved, accounting for depreciation: $2,500.00. d. Power Meter - Connor Electrical Invoice ($221.38): A power meter at the premises was tampered with, causing a meter bypass, which is intentional damage. This was identified and corrected, with the costs being a direct consequence of the Tenant’s actions. The opinion provided by the electrician is detailed and thorough and persuaded me the act of bypassing the metre has occurred during the Tenant’s occupancy. e. Incomplete Claim - Vero Insurance Excess ($650.00): The insurance excess is claimed, ostensibly from rent arrears as per my notes, is not approved. I cannot find any documentary evidence in the Landlord’s application to support this claim.
- Because Eves Realty Limited As Agent For Karen Arlene & David Ian Clarke has wholly succeeded with the claim I must reimburse the filing fee.