Published tribunal order
Tenancy Tribunal case 4946695 — Property damage
Decided 28 Oct 2024 · Published 28 Oct 2024 · Application 4946695
- Property damage
- Rent arrears
Party names are redacted in the official published order.
Order
- [The tenant/s] must pay Quality Rental Management Limited as Agents for Karepo Investments $7,751.36 immediately, calculated as shown in table below.
Reasons
- Mrs Marsters and Ms Christensen appeared for the landlord. There was no appearance by the tenant.
- The tenancy commenced on 12 May 2022 and ended on 29 June 2024. On 29 July 2024, the landlord filed a claim that the tenant had failed to leave the grounds in a reasonable condition, and was responsible for damage to walls, doors, the carpet, bathroom vanity, shower door, laundry tub, and the exterior of the house. Additionally, the landlord claims that the tenant removed all curtains and curtain rails.
- At the commencement of the hearing, the landlord advised that they wished to withdraw the claim regarding the fence. The landlord also advised that the parties had agreed to release the bond to cover cleaning and rubbish removal, leaving a balance of $151.38. After reviewing the photographs, the amount agreed for cleaning and rubbish removal seems appropriate.
- The onus of proving these claims rests with the party making it. The standard required is on the balance of probabilities. In this case both must establish more likely than not that the other has breached the terms of the agreement or provisions of the Act. Rent
- The landlord provided rent records which prove the amount owing at 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 lawns and gardens reasonably tidy and leave all chattels provided for their benefit. See section 40(1)(e)(ii and (v) of the Act.
- The property was built in 1986 and has three bedrooms, kitchen, open plan dining / lounge, bathroom, toilet, and laundry. There are no pre tenancy inspection photographs. There is a pre tenancy checklist dated 10 May 2022 which was competed my Ms Christensen and signed by the tenant. The checklist records the condition of the lawns and gardens as being good.
- The end of tenancy photographs shows a large patch of lawn that has been used as a parking / turning circle. The lawn is also overgrown.
- I am satisfied that the tenant has failed to leave the lawns in a reasonable condition. The amount claimed is awarded.
- At the commencement of the tenancy, curtains and curtain rails were present throughout the property. This is confirmed in the pre tenancy checklist. The end of tenancy photographs show that the curtains and the rails have been removed by the tenant. I am satisfied the tenant has failed to account for these chattels.
- In determining compensation, the Tribunal will consider betterment. 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. Curtains in rental properties have an estimated lifespan of around 8 years. The curtains were installed in 2017 and therefore near the end of their useful lifespan. The curtains did however have some value as they provided the occupant privacy. The tenant also took the curtain rails. The replacement curtains and rails were purchased at a competitive rate. The $707.40 claimed covers curtains, rails, and hooks throughout. The amount claimed is reasonable. There is no deduction made for betterment.
Is the tenant responsible for the damage to the premises?
- To succeed with a claim for damage the landlord must prove that damage 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 of the Act.
- Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
- Where the damage is careless, and occurs after 27 August 2019, section 49B of the Act 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) of the Act.
- 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) of the Act.
- 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.
- In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord.
- As stated in awarding compensation for damage, the Tribunal must also consider betterment and depreciation. In calculating depreciation, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their estimated useful lifespan. Walls and doors
- The landlord has produced end of tenancy photographs showing various damage to walls and doors, including, cracks, dings, dents, scraps, nicks, holes, and multiple screw holes. Apart from the carpet, and curtains, replaced in 2017, there is no evidence that the property has been renovated since it was built in 1986.
- The pre tenancy checklist shows pre-existing damage throughout the property. The landlord has produced a second invoice to repair pre-existing damage. The landlord states the damage for which they seek compensation is over and above that shown in the pre tenancy checklist.
- As stated, there are no photographs showing the interior of the property at the commencement of the tenancy. An issue has arisen whether all of the pre- existing damage has in fact been recorded in the pre tenancy checklist, if not, is the tenant being held liable for damage for which they are not responsible.
- Before and after photographs are the best evidence on which to conduct an objective assessment. The photographs produced show that some damage is historic and consistent with the properties age, whereas some of the damage appears recent.
- Only the damaged areas were repaired with no betterment to landlord. After considering photographs and other evidence, I am satisfied that an award of $3,000.00 is appropriate. Bathroom vanity
- The bathroom vanity is shown to be in a reasonable condition at the commencement of the tenancy. However, it was an original feature. During an inspection on 05 March 2024, the landlord discovered two small burn holes in the basin, compromising its ability to hold water, which would have drained directly into the vanity beneath. The tenant claimed they were unaware of the damage. Based on the photographs, I find that difficult to accept. The photographs show an attempt made to conceal the damage. To avoid further damage the holes were immediately patched at a cost of $86.25.
- Based on the evidence, I am satisfied that the damage has occurred during the tenancy and that it is more than fair wear and tear.
- The landlord is claiming the cost of patching, a new vanity ($1,133.90), and plumbing work ($417.00), totalling $1,637.15. The vanity is as old as the house. A photograph of the vanity from 01 January 2024, shows wear and tear consistent with its age. Plumbing fixtures in rental properties generally have an estimated useful lifespan of around 25 years. Although the vanity was in a reasonable condition at the commencement of the tenancy, it was well past its estimated useful lifespan. I award the full cost of patching the holes and the plumbing but reduce the cost of the new vanity unit by 70% for betterment ($1,133.90 – $793.73). The total amount award is $844.15. Shower door.
- The landlord has produced a photograph showing damage to one of the shower door panels. I am satisfied that the damage has occurred during the tenancy and is more than fair wear and tear. The landlord replaced the sliding door with a new style pivot door, costing $853.53. Like the vanity, the shower appears to be an original feature. To avoid betterment, I reduce the amount claimed by 50% and award the landlord $426.76. Wall behind the laundry tub
- On 11 April 2023, the laundry tub, and the wall immediately behind was replaced. On 05 March 2024, the landlord discovered that the hose connecting the tenant’s washing machine under the tub had split, resulting in a high-pressure leak which had caused water damage to the wall behind.
- The landlord states that there was a towel inside the cabinet, likely placed by the tenant to adsorb water. Based on this the landlord suggests that the tenant was aware of the leak, but failed to report it, causing further damage. A tenant who fails to advise the landlord of any damage may be liable for any further damage that may occur.
- The damaged part of the wall was repaired for $483.00. Unlike the vanity, there appears to have been no effort to conceal this damage. The cabinet is made from metal and would not show external signs of water damage. Despite there being an old towel inside the cabinet, nothing else appears to have been stored inside. On the evidence, I am not satisfied that the tenant was aware of the leak and failed to report it. The claim is dismissed. Carpet
- The end of tenancy photographs show multiple cigarette burns and various other stains in every carpeted room expect the hallway. There is a term of the agreement that the tenant does not smoke inside. I am satisfied that the carpet was damaged during the tenancy and that the damage is more than fair wear and tear. The landlord has produced an invoice for $3,803.51 to replace all of the carpet, including that in the hallway.
- Carpets in rental properties have an estimated lifespan of around 10 – 12 years. The carpet was new in 2017. The pre tenancy inspection report shows a pre- existing stain in one of the bedrooms. The carpet was otherwise in a reasonable condition. The carpet was about halfway through its estimated lifespan. I also take into account the replacement of the undamaged carpet, which was done to avoid a mismatch. The amount claimed is reduced by 55% and the landlord is awarded $1,711.58. Exterior cladding and trellis
- The landlord has produced a photograph showing a hole in the exterior cladding, which was undamaged at the commencement of the tenancy. Part of the subfloor area and around the base of the deck is enclosed by garden trellis. The photographs produced also show that this has been damaged. Part of the trellis under the deck has been removed by the tenant to store a lawn mower and other items, and other sections have been broken. The landlord states that the tenant kept multiple old bicycles, many of which were leaned against the house and the trellis.
- I am satisfied that the damage has occurred during the tenancy and more likely than not is more than fair wear and tear. The landlord is claiming $715.99 to repair the hole and the trellis. The invoice is not itemised. While no pre-existing damage is noted, it is not a structure, unless painted, that has a particularly long lifespan. I apply a modest deduction of 25% for betterment and award the landlord $536.99. Costs
- Because Quality Rental Management Limited As Agents For Karepo Investments has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression.
- The landlord does not seek name suppression and opposes the suppression of the tenant’s name arguing public interest weighs in favour of publication. However, I am not satisfied there is sufficient public interest. There has been a previous decision regarding this tenancy in which, for reasons relevant to the tenant’s personal circumstances, they were granted suppression. That suppression order applies to this decision was well.