Published tribunal order
Tenancy Tribunal case 5225813 — Property damage at 18 Bragato Way, Cromwell, Cromwell 9310
Decided 22 Jul 2025 · Published 22 Jul 2025 · Application 5225813
Landlord favoured
- Property damage
Order
- Michelle Francis Managh and Michael John Owen shall pay $27 to Lina Maria Lastra Sierra and Mark Jason Davy, as calculated in the table below:
- The Bond Centre is to pay the bond of $3,000.00 (6515950-001) to Lina Maria Lastra Sierra and Mark Jason Davy immediately.
Reasons
- Both parties attended the hearings.
- The tenancy end in November 2024. The Tenants apply to recover the $3,000 bond. The Landlords have cross-claimed, seeking to recover the cost of replacing carpet in the living area, which they say has been damaged by the Tenants. The Landlords also seek to recover the cost of having that damage assessed. The amounts the Landlords seek to recover are: a. Cost of assessment of carpet damage $354.76 b. Cost of replacing carpet $4,339.45 The damaged carpet
- The carpet in the living area was new when the tenancy started in November 2023. The Landlords have provided photographs of the carpet in the living room from the end of the tenancy. Those photographs show stains in two areas – beneath where the couch had been and on the floor near the door. The photographs also show that the carpet pile has been damaged and scuffed where the Tenants attempted to clean the stain near the door.
- The Tenants say the stain near the door was caused by the water from a potted house plant that had been on the floor for about six weeks and the other stains were due to food or drink dropped or spilled by their children, which they did not see until they removed the couch while moving.
- The Tenants say they attempted to clean the stains. They say they hired a carpet cleaner and also used a steamer and a cloth. They say that most of the stains were removed, but remnants remain, as shown in photographs provided by the Landlords.
- The Landlords have tried to make an insurance claim to replace the carpet. That claim has been declined. The insurer says that: a. The stains were caused by a gradual process (i.e. watering a plant over time) so the insurance policy does not apply; but b. The insurance policy would nonetheless have applied, but the Tenants have further damaged the carpet when trying to clean it.
- In reaching this view, the insurance company appears to rely on the advice of JAE, a home maintenance company that specialises in carpet cleaning. JAE says that the stains could have been cleaned from the carpet, but the Tenants cleaning attempts now mean the carpet is damaged to the point that it requires replacement.
Who should be liable for the carpet damage?
- Under section 49A of the Residential Tenancies Act 1986 (the RTA), there is a general principle that a tenant has no liability or obligation to meet the cost of any damage to the premises. However, relevant to the facts of this case, under section 49B of the RTA, a tenant can be liable where: a. the Landlord proves that the damage was caused during the tenancy and was not fair wear and tear; and b. the Tenant does not prove that the damage was not caused by any careless act or omission.
- The carpet stains and damage occurred during the tenancy. The Tenants accepted this. The carpet stains and damage are also more than fair wear and tear. Fair wear and tear is deterioration due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. 1
- The carpet stains and damage were not caused by deterioration or the ordinary operation of natural forces. The stains and damage were caused by substances spilled on the carpet and an unsuccessful cleaning attempt.
- Because the Landlords have proven that the damage occurred during the tenancy and was not fair wear and tear, to avoid liability for this damage, the Tenants must prove they did not carelessly or intentionally cause or permit the damage.
- I accept that the Tenants’ actions were not intentional. They did not intentionally spill substances on the carpet. Those spillages were accidental. The Tenants did not then intend to damage the carpet by trying to clean it. They were attempting to remove the damage, not cause more.
- But their actions were careless. The Tenants are liable for the actions of their children. The children have spilled or dropped items under the couch and no attempt was made to remove or clean that spillage at the time. Likewise, the Tenants put a pot plant (albeit one in an indoor pot) on near-new carpet and then watered that pot plant in place. It is reasonably foreseeable that water might leak onto the carpet, staining the carpet if not quickly removed.
- Their attempt to then clean the carpet, although well-meaning, was careless because they failed to exercise the necessary care. The attempted clean was so vigorous that the carpet pile is now irreparably damaged in that spot.
- I therefore find that the Tenants are liable for the carpet damage.
What repair is required?
- The Landlords have had the carpet assessed by Flooring Xtra and have provided a written report from Greg Merwood, the Manager of the Cromwell store. Mr Merwood considers that the carpet in the entire living and dining area should be replaced, rather than simply replacing the affected areas.
- Mr Merwood says that if he was to replace the affected areas only, the new piece of carpet would be from a different batch, and therefore darker or lighter than the existing carpet. Mr Merwood also says that the horizontal joins would also be “very noticeable” and would highlight the new patch of carpet even more. 1 Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403
- The Tenants consider that the carpet could perhaps be cleaned to remove the stains. They also say that they have been told that a smaller area of carpet could be replaced to effect a reasonable repair.
- I certainly understand the Tenants’ submission given the Landlords seek to replace such a large area of carpet for a relatively small area of damage. However, the best evidence that I have as to the necessary repair is the report from Mr Merwood. The Tenants have been unable to provide any rebuttal evidence from a suitably qualified person, so I rely on Mr Merwood’s report and conclude that the carpet in the entire living and dining area requires replacement to ensure that the carpet in the living area is returned to the condition it would have been in but for the stains.
How much should the Tenants pay?
- Where the damage is caused carelessly, a tenant’s liability is limited to the lesser of the cost of the repair, the landlord’s insurance excess (if the property is insured against the damage) or four weeks' rent. 2
- The repair cost (the cost of assessed plus the cost of replacing the carpet) is estimated at $4,694.21. Four weeks’ rent is $3,000. The Landlord’s insurance excess is $700, which is less than the repair cost and four weeks’ rent. Consequently, if the damage was covered by insurance, I would order the Tenants to pay a maximum of $700.
- However, the Landlord’s insurer has declined cover on the grounds that the damage to the carpet was “gradual damage” caused by watering the pot plant over time. That means the property was not insured against the particular type of damage caused, so the Tenant’s liability is not limited to the insurance excess.
- I have carefully considered looking behind the insurance company’s decision to decline cover as, on the evidence I heard, the damage was accidental and careless, and the insurance company’s explanation for declining coverage provided to me is somewhat contradictory. On the one had it says the stains were caused by a gradual process, so not covered. On the other it says the stains would have been covered but for the Tenants’ damaging the carpet by attempting to clean it.
- But I decline to do so. That finding seemed to be open to the insurance company based upon the wording of the insurance policy and the advice it received from JAE, and I decline to substitute my view for the insurance company’s. I therefore find that the premises were not insured against the particular damage that occurred here and the Tenants’ liability for the damage is four weeks’ rent, which is less than the repair cost. 2 Residential Tenancies Act 1986, s 49B(3)(a).
- I acknowledge that compensation of $3,000 seems high for two relatively small areas of carpet damage. In concluding that the Tenants should be liable for this amount, I have considered section 85 of the RTA, which requires me to determine the matter based on the substantial merits and justice of the case, without being bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
- I am influenced by three factors when determining that an award of $3,000 is consistent with section 85: a. Despite the small area of damage, I am satisfied that the evidence shows that the carpet in the living and dining area requires replacement to perform the necessary repair. b. The Landlords will not obtain any significant betterment by having new carpet installed because the carpet was near new when it was damaged. c. The Landlords have not contributed in any way to the damage and will suffer loss themselves because they will need to make up to the shortfall of nearly $1,700 between the cost of assessing and repairing the carpet and the amount I have ordered. The loss they suffer will outweigh any minor betterment they may obtain. Filing fee and name suppression
- The Landlords have been largely successful in their claim, so they are entitled to recover the filing fee. Neither party sought name suppression