Published tribunal order
Tenancy Tribunal case 4502697 — Property damage at 128 Oteramika Road, Seaward Bush, RD 1, Invercargill
Decided 28 Mar 2024 · Published 28 Mar 2024 · Application 4502697
Landlord favoured
- Property damage
Order
- Jennifer White must pay Property Brokers Limited As Agent For John Mulholland $1,803.33 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,000.00 (6204395-013) to Property Brokers Limited As Agent For John Mulholland immediately.
- There is no application for name suppression in this case.
Reasons
- Both parties attended the hearing. The tenant also had a support person attend the hearing.
- The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenant overpaid the rent and this has been taken into consideration.
- The tenancy was over a period of four years nine months. The tenant played a significant role in her community and whanau. She had in her care two young mokopuna. Sadly, they have caused some damage to the property and that has led us to this hearing today.
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:
- Firstly, there is a claim for the insurance excess for the carpet in the lounge, both bedrooms and conservatory. I am concerned that the landlord was carrying out renovations and in fact there were holes in the floorboards causing the tenants other issues during the tenancy although they have not made a claim against the landlord. It is concerning that the claim is for stains on the carpet that was going to be uplifted in any event. The carpet does appears aged.
- 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.
- On this basis I am not satisfied on the evidence that the claim is proven in relation to the excess for the carpets. Excluding however one of the rooms where a fridge was placed, and this clearly caused damage. In this claim I am making a contribution to the excess.
- In relation to the conservatory, I accept the evidence of the tenant who was a very credible witness. Her evidence is that the conservatory was leaking and the carpet rotten, it needed to be removed. There is no evidence to disprove this. As stated, the tenant was a very credible witness and there is no evidence to suggest this was incorrect.
- The claim is dismissed in relation to the remainder of the excess claims and the costs for the conservatory.
- There are a total of six claims for damage to walls and windows at the property. These were accepted and Ms White was open and honest about the fact that her mokopuna were naughty and caused this damage.
- Because Property Brokers Limited As Agent For John Mulholland has substantially succeeded with the claim I have reimbursed the filing fee.