Published tribunal order
Tenancy Tribunal case 4482840 — Property damage at 80 Mirrabooka Avenue, Botany Downs, Auckland 2010
Decided 20 Jul 2023 · Published 20 Jul 2023 · Application 4482840
Landlord favoured
- Property damage
- Cleanliness
Order
- No suppression orders apply to the publication of this decision.
- Joel Hinton to pay Pakuranga & Howick Realty Limited as agent for Chiang Chi, the sum of $6,150.99 immediately, calculated as follows: ItemAmount Rent arrears 27 October 2022 – 21 November 2022$2,191.43. Skip bin hire$424.12 Damage repairs (Melville Contractors)$555.00 Damage repairs (Melville Contractors)$900.00 Damage repairs (B Kerse)$700.00 Loading rubbish skip$200.00 Cleaning$810.00 Lawn mowing$100.00 Carpet cleaning$250.00 Filing fee$20.44 Total payable by tenant to landlord$6,150.99
Reasons
- The Tribunal must consider an application filed by the landlord, and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
- Only the landlord appeared at the hearing. I am satisfied that the tenant has been property notified of the hearing, and therefore I will proceed to consider the claim in their absence.
- The tenancy was terminated by order of the Tenancy Tribunal due to rent arrears.
- The landlord now returns to the Tribunal for an order in relation to post vacation costs and rent arrears. Application for payment of rent arrears
- The landlord has applied for an order that the tenant pay rent arrears.
- The landlord has provided the Tribunal with a rent ledger. I have no reason to consider that record to be incorrect.
- The landlord has received an order from the Tribunal that the tenant pay $10,293.30 in rent arrears. That order is currently being enforced, so I will not make any further orders in relation to that amount. However the landlord now seeks the additional rent arrears from 27 October 2022 until the eviction date of 21 November 2022, being a further sum of $2,191.43.
- The landlord has established that the tenant is in arrears to the amount claimed, and that is ordered in full. Application for cleaning and rubbish removal
- The Residential Tenancies Act 1986 (RTA) requires that the landlord provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (s45(1)(a)), and there is an equivalent obligation on the tenant to return the premises: ...in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish.
- It is important to note that the RTA does not require the premises to be provided / returned in an immaculate condition, only in a reasonably clean and tidy state. There is no scientific way to determine what is ‘reasonably’ clean and tidy, what is required is for the Tribunal to evaluate the evidence available (particularly photographs presented), and then to determine whether the premises would be reasonably clean.
- It is also relevant to note, that the onus for establish the claim, sits with the person making it. If the landlord is seeking to recover costs for cleaning and rubbish removal for example, it is the landlord who must prove that the tenant has breached their obligations under the RTA with how the premises were returned at the end of the tenancy. If the landlord does not establish a breach to the balance of probability, then their claim will be dismissed.
- The landlord has claimed costs for a skip bin and cleaning to the premises. There was extensive goods and rubbish left on the premises. The premises were very dirty. Extensive cleaning would have been required.
- I am entirely satisfied that the landlord has proven the premises were not returned to the landlord reasonably clean and tidy. The claim from the landlord is reasonable, and is ordered in full. Application for compensation
- 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 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 the High Court decision of Guo v Korck [2019] NZHC 1541.
- The premises were widely damaged at the end of the tenancy. For example the evidence is that there were holes in walls and doors, and damaged door handles, windows and light fittings. The tenant left a large kennel that required dismantling.
- The damage is not fair wear and tear, and the tenant has not proven that it was not caused carelessly or intentionally. This claim is established in full. Filing fee
- Because the applicant has been wholly successful in their application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44. .