Published tribunal order
Tenancy Tribunal case 5049408 — Property damage at Unit/Flat 63, 1341 High Street, Taita, Lower Hutt 5011
Decided 8 Feb 2025 · Published 8 Feb 2025 · Application 5049408
Landlord favoured
- Property damage
Order
application (5000468) dated 2 October 2024
Repairs: Wall, oven, light switch, door handle etc$1,074.36 Lock/key replacement$38.00 Filing fee reimbursement$27.00 Total award$2,201.50 Total payable by Tenant to Landlord$2,201.50
Reasons
- The Landlord attended the hearing by video. The Tenant did not appear by video or answer the telephone call made by the Tribunal.
- The landlord has applied for rent arrears from a previous Tribunal Order (case reference 5000468), compensation and reimbursement of the filing fee following 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 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.
- The Tenant did not clean the oven properly and photographs were provided in the outgoing inspection report of the dirty oven with ash residue left under the elements. Ingoing inspection reports were also provided and an invoice for the cleaning.
- The tenant did not return two keys so the Landlord changed the barrel however only charged for the two keys. An invoice was provided for the keys.
- The following chattels were missing at the end of the tenancy: Lounge LED light bulbs. The landlord had to replace light bulbs. An invoice was provided for the light bulbs.
- The amounts ordered are proved.
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 following damage was caused during the tenancy: bedroom, kitchen, bathroom and lounge walls had nicks, dents and marks, kitchen vinyl damage, broken light switch next to the front door, bathroom door damage, broken toilet seat and broken door handle. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. Ingoing, outgoing inspection reports and an invoice was provided for the repairs which substantiated the costs.
- The amounts ordered are proved.
- 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.
- The Landlord has sought the filing fee from a previous application in relation to this property (case reference 5000468) which was requested but not Ordered by the Tribunal. The Landlord will need to request this amendment with the Adjudicator who granted those particular Orders as the case reference is entirely different,
- As Oxygen.Co.Nz Limited Acting Agent For United Group Limited has been substantially successful with the claim the Tenant must reimburse the filing fee.