Published tribunal order
Tenancy Tribunal case 4993791 — Smoke alarms at 43 Lockheed Street, Hobsonville, Auckland 0618
Decided 12 Dec 2024 · Published 12 Dec 2024 · Application 4993791
- Smoke alarms
- Property damage
Order
that the tenancy will terminate on the agreed date.
Relevant legal principles
- The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
- That includes a requirement that the party bringing the claim (here, the landlord), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
- This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
- As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Application for compensation for damage is withdrawn
- 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 is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- I note that under any such claim, the 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 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.
- As the tenancy has not yet come to an end, and the tenant accepts liability for some of the damage (e.g. the garage door) the landlord sought to withdraw the application for compensation for damage. Should the tenant be in breach of their obligations at the end of the tenancy, the landlord may wish to bring a fresh application.
- The application for compensation for damage to the property is withdrawn. Application for compensation for pest control
- The landlord asserts she has incurred a loss of $390.00 for payment for pest control services on 27 June 2023 and 1 June 2024. The landlord also says there is one further unpaid invoice from the pest control company dated 7 August 2024 for $195 which the landlord asserts the tenant is liable to pay. The landlord provided a copy of the invoice dated 7 August 2024, however she did not file a copy of the invoices dated 27 June 2023 and 1 June 2024.
- On each occasion, the tenant reported a mouse or rat in the house, following which the landlord arranged for pest control to attend the property. The landlord relies on advice received from the pest control company that the most likely access point for the rodents was the garage door.
- The landlord says the tenant ran an electrical chord from the garage door to his electric car parked in the driveway. The landlord says by doing so, the garage door could not seal closed, and may have provided the rodent(s) access. The landlord also says the tenant would keep a sliding door open during the day which may have provided rodents access.
- The landlord did not call a witness from the pest control company, nor provide a written report, setting out their opinion on the likely cause of the rodent problem. The landlord relied upon an email sent to her from an employee of the pest control compnay on 8 August 2024 which was read aloud at the hearing. Essentially, the technician stated their opinion that mammals, such as rodents, try to get to warm and dry shelter. The technician stated there are no signs of rodent activity in the garage but there is in an adjacent cupboard and they may be going in under the door.
- The landlord stated the tenant reported the rodent(s) were seen inside the house, on the first occasion inside a cutlery drawer in the kitchen, and on another occasion inside a wardrobe in a bedroom on the second storey. The landlord could not recall where in the house the rodent(s) were seen on the third occasion.
- I am not satisfied the landlord has proven, on the balance of probabilities, that the tenant, by either intentionally leaving the garage and/or sliding doors open, or doing so carelessly, has caused damage to the property, specifically a pest problem. I am not satisfied that the tenant’s choice to run an electrical chord under the garage door, or to leave a sliding door open, are more likely than not the cause of the rodent problem. The rodent(s) were found in other areas of the home, and I am not satisfied the landlord has demonstrated the tenant’s actions contributed to the issues.
- Given this, I dismiss the landlord’s claim for compensation for the costs of pest control. N Small 12 December 2024