Published tribunal order
Tenancy Tribunal case 5115228 — Property damage at 7D Inverness Avenue, Hamilton East, Hamilton 3216
Decided 5 Mar 2025 · Published 5 Mar 2025 · Application 5115228
Landlord favoured
- Property damage
- Cleanliness
Order
- Luther Adamson must pay Online Rentals Limited - As Agent For Hazel Gao $1,200.50 immediately, calculated as shown in table below.
Reasons
- The landlord’s agent attended the hearing.
- Following the end of the tenancy, the landlord has applied for compensation for damages and reimbursement of the filing fee. Bond
- The tenancy ended on 9 December 2024. The landlord stated the bond of $960.00 was refunded to the landlord in satisfaction of rent arrears.
- The claims made to the Tenancy Tribunal are for compensation which was not covered by the bond being refunded to the landlord. Burden and standard of proof
- 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.
- That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fraction 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.
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 did not leave the premises reasonably clean and tidy. The landlord produced photos taken between 9 and 31 December 2024 which show the rubbish and debris was left on the floors, such that the floors could not have been cleaned. 1 Photos of the kitchen show kitchen items, crockery and food covering the bench space. 1 The landlord’s agent stated the property was not re-tenanted until mid-January 2025 and was not occupied between 9 – 31 December 2024.
- The landlord filed an invoice stating cleaning of the two-bedroom unit took 24 hours at a cost of $30 per hour. In total, the landlord seeks $720.00 in compensation for cleaning.
- At the hearing, the landlord’s agent acknowledged 24 hours was excessive for cleaning a two-bedroom unit. The landlord’s agent submitted 5 hours cleaning was reasonable.
- I find 5 hours cleaning is reasonable given the size of the premises and the state it was left in, as demonstrated by the photos provided. I make an order accordingly.
- The tenant did not remove all rubbish at the end of the tenancy. The landlord produced photos which showed kitchen items, food, crockery, rubbish and other debris was left throughout out the two-bedroom unit.
- The landlord filed an invoice from NZ Sunrise INTL Trading Co Ltd dated 27 December 2024 seeking $100.00 (ex GST) for “remove and dump rubbish” and a separate invoice from Flash Property Services Limited dated 17 December 2024 seeking $736.00 (incl GST) for “Clear all rubbish and belongings throughout the unit and dump.”
- At the hearing, the landlord’s agent acknowledged there appeared to be a double-up in the claim for rubbish removal and stated the landlord only sought compensation of $736.00, as per the invoice from Flash Property Services Limited. The landlord’s agent stated it took the contractor 1.5 – 2 days to remove and dispose of the rubbish left in the unit.
- I find the cost of rubbish removal ($736.00) proved and I make an order accordingly.
- The tenant did not return the keys at the end of the tenancy. The landlord called a locksmith to gain access on 9 December 2024. The landlord has filed an invoice dated 9 December 2024 for “supply and install x1 deadbolt and rekey x1 lock” for $265.
- I make an order accordingly.
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 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.
- I am not satisfied the landlord has proved the tenant caused damage to the ceiling or to the carpet.
- The landlord filed photographs showing a hole in the ceiling and two holes in the carpet of one room. The photographs were taken between 20 – 27 December 2024. The landlord also filed an invoice from the contractor who carried out the repair work, dated 27 December 2024, which states it cost $200 (ex GST) to repair the ceiling and $300 (ex GST) to repair the carpet.
- The landlord did not file photographs to show the condition of the ceiling or the carpet at the start of the tenancy. When asked about such evidence at the hearing, the landlord’s agent said they would have photos but they are in an old system. The landlord’s agent confirmed they had not filed any evidence of the state of either the ceiling or the carpet at the start of the tenancy.
- Without evidence of the condition of the ceiling or carpet at the start of the tenancy I can not be satisfied the damage occurred during the tenancy.
- The claims for compensation for damage to the ceiling and carpet are therefore dismissed. Filing fee
- As the landlord succeeded with the claim the tenant must reimburse the filing fee.