Published tribunal order
Tenancy Tribunal case 4987549 — Property damage at 226 Tramway Road, Enderley, Hamilton 3214
Decided 21 Oct 2024 · Published 21 Oct 2024 · Application 4987549
Mixed / unclear
- Property damage
- Cleanliness
- Smoke alarms
Order
- Mortisha Roze Jack Kino and Tawhio Tukaki must pay Utrust Property Management Limited as Agent for Ko-Tzu Chen $1,049.38 immediately, calculated as shown in table below.
- The Bond Centre is to pay $1,049.38 from the bond (5780469-003) to Utrust Property Management Limited as Agent for Ko-Tzu Chen.
- The Bond Centre is to pay the balance of the bond of $1,350.62 to the tenant.
Reasons
- The tenancy commenced on 09 April 2021, ending on 03 July 2024, after the tenant gave notice. The landlord’s application was filed on 28 August 2024. Mr Wang appeared for the landlord. There was no appearance by the tenant.
- The landlord claims that the tenant has failed to leave the property reasonably clean, remove all rubbish, return the keys, and account for a missing smoke alarm, the food scraps bin, a bathroom mirror, and a light bulb in the lounge. The landlord also claims that the tenant is responsible for damage to windows, walls, and doors which is more than fair wear and tear.
- The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).
- At the end of the tenancy rent payments continued to be made by the tenant, resulting in a rent overpayment of $3,005.42, which the landlord holds on trust.
- The property was built in the 1970s. It consists of four bedrooms, an open plan kitchen / dining room, lounge, bathroom, toilet, laundry, external garage, and small garden shed.
Did the tenant comply with their obligations at the end of the tenancy?
- The landlord claims that the tenant failed to leave the property reasonably clean, including the carpet, failed to remove all rubbish, failed to return the keys, and failed to account for a smoke alarm, a light bulb, and the food scraps bin.
- 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) of the Act.
- What is reasonably clean, and tidy is not defined in the Act. The standard is based on what an average bystander would consider reasonable, not the subjective opinions of the landlord or tenant. In determining whether the tenant has failed to meet their obligations the Tribunal must evaluate the evidence available including inspection reports and photographs.
- The landlord has produced photographs showing the interior and exterior of the property at the commencement and end of the tenancy. There is also a photograph showing the keys provided, and the food scraps bin.
- After reviewing the photographs and hearing from Mr Wang, I am satisfied that the tenant has failed to leave the property reasonably clean, there are stains to the carpet in bedrooms two, three, and four, which were not present at the commencement. There is furniture and rubbish left outside, the lawns and gardens have not been left in a reasonable condition, as they had been at the commencement of the tenancy. The keys were not returned. The council food scraps bin was not returned, the bathroom mirror was removed, a smoke alarm, and a light bulb in the lounge were missing.
- The landlord is seeking $545.00 for cleaning, $115.00 to remove carpet stains, $174.20 rubbish removal, which includes disposal fees, $380.50 for garden and lawn maintenance, $27.75 to replace the smoke alarm, $171.00 to re-key the locks and cut new keys, $27.10 to replace the food scraps bin, $130,00 to replace the bathroom mirror, and $5.00 for the light bulb.
- The invoice for the garden and lawn maintenance includes “small plants trimming,” under the agreement the tenant is responsible for lawns and gardens and not shrubs, trees, or hedges. Accordingly, I am reducing the claim by $80.50. A standard light bulb costs $2.25 not $5.00. All of the other amounts are reasonable and awarded in full.
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.
- In awarding compensation for damage, the Tribunal must also consider 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, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful lifespan. Walls, doors, and ceilings
- The landlord is claiming $1,932.00 to repair damage to walls, doors, and ceiling in the bathroom above the shower. The landlord has provided photographs of the damaged areas at the commencement and end of the tenancy. The damage consists of holes, nicks, dents, scratches, wallpaper, and paint tears. I have been able to make a before and after comparison for each. Although individually none of the damage can be described as significant, it is widespread.
- Having considered the evidence, I am satisfied that the damage occurred during the tenancy and is more than fair wear and tear. The total amount claimed is less than the combined insurance excesses, $550.00 per claim, which would have applied. The invoice includes $230.00 to repair damage under the laundry sink. I am not satisfied that the tenant is liable for this damage, and I reduce the amount claimed and award the landlord $1,702.00. I have made no deduction for betterment. I am satisfied only the damaged areas have been repaired, and that the landlord has not been placed in a better position than they would have been had the damage not occurred. Pull out bin.
- The kitchen has been recently modernised and has a pull-out drawer with a moulded plastic waste bin. The landlord has provided a photograph of the bin in place at the commencement of the tenancy. A photograph taken at the end shows the bin missing. I am satisfied that the bin was removed during the tenancy. Removing the bin is intentional damage that is more than fair wear and tear. The landlord replaced the bin for $200.00. As stated, the bin is made for the cabinetry and cannot be sourced from a normal retail outlet. The amount claimed is reasonable and awarded in full. Windows
- There is a garden shed at the property which has an aluminium door with two glass panels, and eight small diamond shaped windows. The pre tenancy photographs show that the lower glass panel to the door was damaged. The other windows were undamaged. The end of tenancy photographs show that the upper panel of the door has been damaged along with five of the small windows. The windows appear to have been smashed out. The invoice is for $690.00 to repair the upper panel and five windows. The invoice also includes $57.50 to “fix and repair bottom stile of door and refit to door”. I am not satisfied that this cost is attributable to the tenant, and accordingly I reduce the amount claimed and award the landlord $632.50 to repair the windows. Costs
- As the landlord has been substantially successful, I order reimbursement of the filing fee. Name suppression.
- No orders for suppression are sought.