Published tribunal order
Tenancy Tribunal case 4984488 — Property damage
Decided 25 Oct 2024 · Published 25 Oct 2024 · Application 4984488
- Property damage
Party names are redacted in the official published order.
Order
- [The tenant/s] to pay [The landlord/s] $1,627.00 from the bond, calculated as shown in table below.
- The Bond Centre is to pay the bond of $3,000.00 ([Bond number suppressed]) immediately apportioned as follows: [Landlord]:$1,200.00 [Tenant]$1,800.00
Reasons
- Both parties attended the hearing.
- The landlord has applied for compensation, partial refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- There are three matters for which the landlord seeks compensation for repairs at the end of the tenancy: marks on walls, stove top, garage door.
- The tenancy began on 18 October 2022 and ended on 15 June 2024.
- At the start of the tenancy, the property, including appliances was four years old. The photos taken at the start of the tenancy show that the property still looked very new and was in immaculate condition.
- The tenants accept responsibility for marks on the walls and agree to pay $400 for repairs and painting of those.
- That leaves the question of the stove top and garage door.
Is the tenant responsible for the damage to the premises?
- The landlord seeks two insurance excesses of $1000 each for damage to the stove top and the garage door.
- 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.
- The stove top is a ceramic one. The photos from the end of the tenancy show that one element has been badly scoured. The tenants acknowledge that they used metal implements to clean the stove. They said they have done that in previous properties with no issue. They consider the damage is fair wear and tear.
- I find that the damage is more than fair wear and tear. I acknowledge that ceramic stove tops can be difficult to clean, but the tenants have unintentionally caused damage to the stop top.
- 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.
- The landlord has provided a quote showing that the replacement cost of the stove top will be $2,049.00. The landlord has insurance. The excess is $1,000, and that is the amount being sought.
- However, the landlord has not replaced the stove top. The property has been rented out with the damaged stove top which is still functional. The issue is that the appearance of the stove top is significantly marred and this is still a new house, only 4 years old. The landlords think that when they go to sell the property, they will need to replace the stove top.
- 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.
- I have taken into account that at the end of the tenancy, the stove was 5 years old and so the landlords have had the use of it for that time. They will continue to have the use of it while the property is rented out. The tenants are not liable for the full cost of a replacement stove top. It is unclear when or if the stove has been replaced.
- Accordingly, I have decided that reasonable compensation for the damage caused to the stove top is $200.
- The next issue is the garage door. The photos show a small dent at the bottom of one of the garage doors. The tenants accept that they are responsible for this, but dispute the amount claimed. They say it should be only $600, but have not provided any evidence to support this amount.
- The landlord has not yet had the panel replaced. The landlord provided a quote for replacement of the panel at $1,150.00, including GST. They seek the sum of $1,000 being the excess.
- Because of the immaculate state of the premises, I accept that a small dent to the bottom of a garage door is more than fair wear and tear.
- However, the landlords have had the use of the garage door for 5 years and continue to do so. It remains fully functional and the property is tenanted. There has been no loss to the landlords and it is difficult to quantify future loss. The tenants had offered to pay $600 and so I have decided that is reasonable compensation.
- The tenant had agreed to pay $1000. The landlord has been ordered a further $200. Because the landlord has not been “substantially successful”, I have not ordered reimbursement of the filing fee.
- The parties should have been able to reach a mediated settlement. It does not appear that they chose that route. I have decided that both parties should have their names suppressed.