Published tribunal order
Tenancy Tribunal case 4945819 — Rent arrears at 23 Mallard Drive, Selwyn Heights, Rotorua 3015
Decided 2 Sept 2024 · Published 2 Sept 2024 · Application 4945819
Dismissed
- Rent arrears
- Property damage
Order
- The Bond Centre is to pay the bond as follows: a. To the Landlord: $611.43 b. To the Tenant: $2,848.57 c. The amount in [1] is calculated by the following award: Description of Award Amount Awarded Rent Arrears$73.93 Repair of Wall Holes$287.50 Repair of Broken Cupboard Doors $250.00 Total Award$611.43 Deducted from bond: to Landlord$611.43 Balance of bond: to Tenant$2,848.57
- The Tenants’ application is dismissed.
Reasons
- Both parties attended the hearing by telephone.
- The Tenants, despite my warnings not to overtalk the Landlord or myself, proceeded to do so, and interfere with my conduct of the hearing. In the end I have been forced to end the hearing and determine the claims on the basis of the evidence before me, and from notes of the last hearing.
- I decline the Tenant’s application. The reasons for this are set out in my decision of 5 August 2024. Given the Tenants’ persistent interruptions during the hearing today they lost the opportunity to make further, final submissions.
- The landlord has applied for rent arrears, compensation, refund of the bond ($3,460.00 with tenancy services), and reimbursement of the filing fee ($20.44) following the end of the tenancy.
How much is owed for rent?
- The tenancy ended on 20 May 2024. The Landlord provided rent records which prove the amount owing at the end of the tenancy: $73.93
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 Landlord submitted an invoice from YaoJun Dong, a building contractor, for the following repairs which I assess in turn: a. Repair of Broken Washing Vanity: $718.75 – The Landlord gave oral evidence the vanity was not damaged at the start of the Tenancy, and photos of a crack in the vanity at the end of the Tenancy. The Tenant denies liability. I have no clear proof of the condition of the vanity prior to the commencement of the Tenancy to discern absence of damage or condition of the vanity. I decline this claim. b. Repair of Wall Holes: $287.50 – I accept the Landlord’s evidence that he would not have tenants the property with holes in the walls and it would have been something the parties would have put in writing, on balance, either in a text message or on the tenancy agreement. I approve this claim in full. c. Repair of Broken Cupboard Doors (3): $517.50 – I accept the Landlord’s evidence that he would not have tenants the property with broken cupboard doors and this too would have been something the parties would have put in writing, on balance, either in a text message or on the tenancy agreement. I approve this claim, in part, considering betterment and depreciation, awarding $250.00.
- 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.