Published tribunal order
Tenancy Tribunal case 4528330 — Rent arrears at 7 Crosby Road, Chartwell, Hamilton 3210
Decided 7 Aug 2023 · Published 7 Aug 2023 · Application 4528330
Landlord favoured
- Rent arrears
- Property damage
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Gavin Belton and Rayma Heta must pay Quality Rental Management Limited as Agent for Lynne & John Robinson $3,706.27 immediately, calculated as shown in table below.
Reasons
- Mr Fyfe appeared for the landlord. There was no appearance by the tenant. The application was initially listed for an in person hearing on 13 May 2023. On that date, due to severe weather conditions affecting the country, the tenant was unable to attend in person. An attempt was made to conduct the hearing by telephone. This was not possible, and the matter was adjourned. The landlord was also granted leave to file an amended claim, which they did. I am satisfied that the tenant has been provided with details of the amended claim, and notice of the date, time, and venue of this hearing. The matter has proceeded in the tenant’s absence.
- The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”). Rent arrears and break lease costs.
- The tenancy commenced on 09 July 2021 and was for a fixed term. Prior to the expiry of the fixed term the parties entered into another fixed term agreement to end in July 2023. On 04 January 2023 the parties entered into an agreement to bring the fixed term to an end.
- In the absence of any agreement to the contrary the default position is that the tenant is liable for rent until the end of the fixed term. The agreement adopted by the parties mirrors a standard clause often used in tenancy agreements whereby the tenant accepts that they will remain liable for rent until a new tenancy agreement is entered into. The agreement, and the provisions of the Act, also provide that a landlord may seek reasonable costs associated with entering into a new agreement.
- In this case the landlord entered into a new tenancy agreement on 15 February 2023. A copy of the new agreement has been produced. The rent owing to that date, confirmed by the rent summary, was $2,720.00. The last rent payment made by the tenant was 06 January 2023. The landlord has also produced an invoice setting out costs associated with reletting the property and entering the new agreement for $563.93. The costs claimed are reasonable.
- I award both the rent arrears and break lease costs.
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) of the Act.
- The landlord claims that the tenant failed to leave the property reasonably clean and tidy, which includes the carpet and lawns, and remove all rubbish. The landlord claims $958.40 for cleaning, carpet cleaning, and rubbish removal, and $103.50 for lawn mowing.
- The landlord has produced photographic evidence showing the state of cleanliness of the property at the end of the tenancy. Having viewed the evidence and heard from Mr Fyfe, I am satisfied that the tenant has failed to leave the property in a reasonably clean and tidy condition, including the carpet and lawns, and remove all rubbish. Based on the evidence the amounts claimed are reasonable and awarded in full.
Is the tenant responsible for damage to the premises?
- To succeed with a claim for damage the landlord must satisfy the Tribunal that the damage occurred during the tenancy and is more than fair wear and tear. The tenant’s liability will follow a breach of the agreement or provisions of the Act not to cause or permit damage, over and above fair wear and tear, to be caused to the property. Fair wear and tear can be described as damage which arises during the ordinary day to day use of the property. See Taylor v Webb [1937] 2KB 283 (CA). Fair wear and tear is damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear of carpet or flooring occurring with everyday use. Once the landlord has established to the required standard that the damage occurred during the tenancy, and that it is more than fair wear and tear, the onus shifts to the tenant who must show that the damage was not the result of a careless or intentional act on their part, or someone at the property with their permission.
- 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. See section 49B(3)(a) of the Act.
- 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.
- A tenant is liable for the full cost of repairing damage caused intentionally.
- Damages claimed, and awarded, must flow naturally from the breach and be reasonable. The Tribunal must also consider betterment and depreciation. The landlord is entitled to 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 betterment and depreciation, the Tribunal will consider the age and condition of the items at the start of the tenancy and their likely useful lifespan.
- The landlord has produced a pre tenancy checklist showing that the property had been newly redecorated at the commencement of the tenancy with freshly painted walls, new carpet, and vinyl flooring. The end of tenancy inspection report and photographs show minor damage in the form of nicks, scrapes, scratches, and dings to most walls in the property.
- I am satisfied that the damage has occurred during the tenancy. My objective assessment is that the damage is more than fair wear and tear, and more likely than not the result of carelessness. The landlord has insurance for careless damage with an excess of $550.00 per claim. Had the landlord made a claim against their insurance there would have been multiple excesses. The amount claimed, $1,500.00, to repair all the damage is reasonable, and considerably less than the combined excess. Considering the age and condition of the paint on the walls at the commencement of the tenancy I make no deduction for betterment or depreciation.
- The landlord has made a unilateral application for refund of the bond, which they now hold. I deduct the bond from the total amount ordered. Costs
- The landlord has been wholly successful with their claim, and I reimburse the filing fee. Name suppression
- Although the landlord has been wholly successful they do not seek name suppression.