Published tribunal order
Tenancy Tribunal case 5059488 — Property damage at Unit/Flat 2, 1137 Fergusson Drive, Clouston Park, Upper
Decided 10 Jan 2025 · Published 10 Jan 2025 · Application 5059488
Mixed / unclear
- Property damage
Order
- Jack Gordon and Katie Turnbull are to pay Personal Property Management Limited as Agent For Kin Hoe Chang $2,403.02, immediately.
- The Bond Centre is to pay the bond of $1,600.00 (6206975-019) immediately apportioned as follows: Personal Property Management Limited as Agent For Kin Hoe Chang: $1600.00
Reasons
- Both parties attended the hearing.
- The landlord initially brought an application for: a. vacated arrears; b. compensation relating to cleaning and damage to the property after the tenants had moved out; c. exemplary damages for exceeding the maximum number of tenants at the premises; and d. exemplary damages for failing to reinstate the premises following minor changes.
- The hearing was adjourned to allow the tenant to provide bank records, which showed that rent payments have been made. Subsequently the landlord has withdrawn the claim for rent arrears.
- The claims for damage, cleaning, and exemplary damages remain. Exemplary Damages - number of tenants
- Personal Property Management Limited As Agent For Kin Hoe Chang claims that the number of people living at the premises exceeds the maximum number allowed in the tenancy agreement.
- Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant must ensure that the number is not exceeded. See section 40(3) Residential Tenancies Act 1986.
- Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,000.00. See section 40(3A)(e) and Schedule 1A Residential Tenancies Act 1986.
- The tenancy agreement specifies that the maximum number of 3 people may live in the premises during the tenancy. However, it appears that since 2020/2021 Ms Turnbull has moved in and the tenants lived there with their two young children. However, I am satisfied that the landlord was aware of and consented to this arrangement.
- The landlord has alleged that another person was living at the premises in the caravan which was parked in the driveway. Photos of this person had been presented, which show a man entering the caravan. The landlord also says that the fact that a caravan plug was installed by the tenant to allow the caravan to be powered leads to an inference that the caravan has been occupied.
- The tenants say that the caravan was used as accommodation for Mr Gordon and the children. The tenants say that the man shown the caravan was a friend who was visiting to assist with their moving out, but that he was not residing at premises.
- I am presented with two competing depictions of whether the maximum number of people living at the tenancy has been exceeded. The landlord is largely relying on the photo of the man exiting the caravan. There is no other evidence which can allow me to differentiate between the two accounts. Therefore, I must consider who bears the onus of proving the cause of the damage. The landlord has claimed the breach and therefore bears to onus of proving his case. The landlord has not proved that the tenant has committed an unlawful act. Exemplary damages – remediating minor changes
- Personal Property Management Limited As Agent For Kin Hoe Chang claims the tenants have failed to return the premises to a condition that was substantially the same as the condition prior to a minor change being made by the tenant.
- On or before the expiry of a tenancy the tenant must return the premises to a condition that is substantially the same as the condition the premises were in prior to the minor change being made. See 42B(4) Residential Tenancies Act 1986
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 See section 42B(6) and Schedule 1A Residential Tenancies Act 1986.
- The landlord has referred to 3 instances here: a. the failure to remove caravan plug installed in the soffit; b. the failure to reinstate the hole in the garage where the power cable was removed; c. the failure to reconnect the dishwasher; d. the failure to reinstate the bedroom one door handle, removed by the tenant; and e. the failure to remove a number of wood screws installed in a fence cap to prevent chickens roosting on it.
- As well as the exemplary damages landlord has also claimed $316.25, which is the cost to remove caravan plug, and to reinstate the soffit and garage wall, and the cost to replace the door handle.
- There is no argument that the work referred to at paragraph [16] above was carried out intentionally. The tenancies it was done with the consent of the landlord, the landlord disagrees. However, the issue is not whether there was consent but whether there was reinstatement. There plainly was not.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- With regard to the caravan plug, the tenants’ view is that the caravan plug was a useful addition to the house. It was installed by an electrician, and the evidence shows that the plug was tidily installed. With regard to the hole in the garage, this appears to have been a minor oversight which was corrected with silicon sealant. The dishwasher has not worked since 2019, an issue which has been raised in the past with the landlord, and which was the subject of an application by the tenants to this Tribunal. The door handle was removed at an earlier time when the mechanism broke leaving the tenants’ daughter stuck in the room and it appears the landlord was aware of the issue. With regard to the screws on the fence the tenancy evidence was simply that he had forgotten that these been installed.
- The effects of these acts were relatively minor. The garage and caravan plug were reinstated at a relatively low cost, and the evidence is that the screws were on a section of fence capping which was between some one half and 3 m long and would have been straightforward to remove. It appears the dishwasher needed work in any event. There is no evidence to contradict the tenants’ evidence that the landlord was aware of the broken door handle but had not reinstated it.
- I do not consider that either the landlord’s or the public interest are served by making an award of exemplary damages in this instance. Exemplary damages are intended to make an example of flagrant bad behaviour. The issues referred to here are minor. Moreover, the landlord has claimed the cost of remediating the caravan plug and garage issues. Therefore, I decline to make an award of exemplary damages in this case.
- However, the tenant is liable for the reasonable cost to reinstate the premises. The landlord has spent $316.25 to remove the caravan plug and fix the hole in the garage wall, and I award this amount.
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 tenancy began on 16 April 2018, and on 6 October 2024. The upshot of this is that when considering the necessity for cleaning, and the issues of wear and tear discussed below I am mindful that the tenancy was in place for some 6 ½ years, and for the half that period the house was rented to a family with young children. There was also a change of property manager, and the tenant says that there were no regular inspections of the house.
- The tenants did leave the premises reasonably clean and tidy, but for issues relating to the carpet which was cleaned the cost of $200 and the splashback, rangehood, and cooktop which were left greasy, at a cost of $50.
- Considering the necessity to clean carpets there are photos which show what appears to be a rust mark from the frame of the couch in the lounge and other marks on the hallway carpets. The landlord also referred to a smell of dog on the carpets. However, the tenant says they never had a dog, and the landlord has produced no evidence showing that a dog was present.
- The tenant says that they had cleaned the carpets, prior to vacating the premises. Following this it appears that the house was left closed up for a period and the smell seems to have come from the carpets being damp in a closed-up house during this period.
- I am not persuaded the tenants are liable for the cleaning of the carpets. While I note the carpets were new when the rental period began, I am mindful that the tenancy was in place for some six years, the stains and marks shown in the photos are relatively minor, and the smell appears to have come from the timeframe taken for the landlord to re-enter the premises. I decline the claim for cleaning costs of the carpet.
- The landlord has claimed for the costs to clean the rain should cooktop and splashback which were left greasy. However, the landlord has also claimed for the cost to replace the cooktop, which is discussed below. Following the work to replace this it would be necessary to clean this area in any event. Therefore, I decline the claim for cleaning the cooktop area.
- There was also a mention of the need to clean the dishwasher, however this is not mentioned in the invoice for cleaning.
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, which is $500 in the present case, or four weeks' 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.
- The landlord alleges that the tenant caused the following damage to the premises: a. The insurance excess for the replacement of the ceramic cooktop which had been damaged by an object being dropped on it. b. Damage to the plastered and painted walls of bedrooms 1 and 2, the hallway, and the lounge. The damage involves a mixture of: i. divots scratches and gouges in walls which appear to have come from the removal of a TV bracket, and hard objects hitting or being dragged along the wall; and ii. holes behind the front door and the door of bedroom two where it appears the door has been forcefully banged in, flexing past the limit provided by the doorstop below. c. The replacement and reinstatement of the door handle in bedroom one which has been removed damaging some of the paint. d. Marks and scratches on the bathroom door. e. The cost to replace an ONT box for the supply of broadband Internet which had been removed. The cooktop
- The cooktop was damaged when the tenants’ children dropped a pot on it, taking a chunk out of the ceramic edge. The claim was made to the landlord’s insurer, was accepted, and the cooktop has been replaced. The landlord claims for the excess of $500. I find that the damage occurred due to an incident of carelessness, albeit accidental. Therefore, the tenant is liable to pay the excess of $500. Damage to walls
- The landlord has given evidence that the internal walls were a new condition when the tenancy began and says that the damage to the walls is beyond wear and tear. The tenant says that the work was done on the cheap and the plaster was too soft and damaged easily.
- I do not accept the tenant’s explanation. The photos show extensive damage through much of the house which would have occurred through numerous instances of impacts with the walls. One or two marks happening easily would lead to a situation where the tenant should have advised the landlord, who was a plasterer, of the issue. However, there is no evidence that this occurred. The damage is to extensive and widespread to be fair wear and tear. Rather, it appears the damage has been caused by the children playing roughly by doors being banged on by objects being dragged along the wall. I find that this damage has occurred due to carelessness. While each instance of damage would be covered as a separate insurable claim, the cost to repair each instance of damage is well below the landlord’s excess which is $500. Therefore, unlike the cooktop, the tenant is liable to repair the damage.
- The landlord has had the damage to the walls and doors repaired at a cost of $3105. No breakdowns been provided to differentiate between the damage to the walls in the damage the doors which is discussed below. Because of this I will apportion $2805 to the replastering and painting of the walls and award this amount to the landlord. Bedroom one door handle
- The landlord has claimed the cost to replace and reinstall the door handle bedroom one. The door handle was removed by the tenants at some stage in the past when the mechanism broke, leaving their young daughter trapped in the bedroom. The tenants say the landlord was advised of this, and that they offered to reinstall a new handle, but the landlord never supplied one.
- The property manager was not involved in this discussion, and there is no evidence which contradicts the tenant’s depiction of events. Therefore, I accept the tenants’ explanation. When incidents like this occur, it is the landlord’s responsibility to maintain and remediate the property. Therefore, the tenants cannot be held liable for the cost to reinstate the door of bedroom one. As mentioned above there is no breakdown of the costs claimed by the landlord. I consider it reasonable to apportion $200 for the supply and installation of the door handle, and $50 to repaint the door. This amount will be removed from the invoiced amount for the repairs to the tenancy and credited to the tenants. Bathroom door
- The landlord has claimed for the cost to repaint the bathroom door, which is wear and scratches on the side where it has been opened and closed. This is fair wear and tear caused by the opening and closing of the door. I consider it reasonable to apportion $50 for the repainting of the door. This amount will be removed from the invoiced amount for the repairs the tenancy and credited to the tenants. ONT box
- When moving out the tenants removed and took the Chorus ONT box, in error. The landlord has been required to replace and reinstall this to reconnect broadband, at a cost of $381.77. I want this amount.
- The landlord has also claimed for the filing fee. Given that the claim for rent arrears was not made out, and exemplary damages were not awarded I do not consider it appropriate for the filing fee to be included in the amounts awarded.