Published tribunal order
Tenancy Tribunal case 4540289 — Property damage at 17 Dowding Street, Melville, Hamilton 3206
Decided 9 Aug 2023 · Published 9 Aug 2023 · Application 4540289
Landlord favoured
- Property damage
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Rosie Elliott must pay Lodge City Rentals Limited as Agent for C Devadittiy $9,704.10, immediately, calculated as shown in table below. .
Reasons
- Ms Cawte appeared for the landlord. There was no appearance by the tenant.
- The tenancy commenced on 11 October 2017 and ended on 06 February 2023. The landlord’s claim was filed on 31 March 2023.
- The landlord’s claims were confirmed at a Case Management Conference on 09 June 2023, and are that: (in brackets is the compensation sought), (i) The tenant had failed to return the keys ($264.46), (ii) The tenant had failed to remove all rubbish ($1,587.00), (iii) The tenant had failed to leave the grounds in a reasonably tidy condition ($1,104.00), (iv) The tenant is responsible for an infestation of fleas, German cockroaches, rats, and mice ($1,745.70), (v) The tenant has caused damage to curtains ($1,259.25), (vi) The tenant has damaged the carpet ($4,227.50), (vii) The tenant has caused damage to walls ($11,327.50), (viii) The tenant has damaged the heat pump ($2,100.00).
- 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”).
- Ms Cawte advises that the claim that the tenant has damaged the curtains, 4(v), is being withdrawn. No evidence is offered, and that claim is dismissed. Failing to return the keys ($264.46), failed to remove all rubbish ($1,587.00), failing to leave the grounds in a reasonably tidy condition ($1,104.00), responsibility for infestation of fleas, German cockroaches, rats, and mice ($1,745.70),
- 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.
- I am satisfied that at the commencement of the tenancy the landlord provided keys to the front and back doors, and that these were not returned at the end of the tenancy. To properly secure the property the landlord had the locks changed and new keys cut at a cost of $264.46.
- The landlord has produced a pre tenancy inspection report and photographs showing the property at the commencement of the tenancy. The landlord has produced an end of tenancy inspection report that includes photographs. I have considered the photographs and heard from Ms Cawte, who conducted the end of tenancy inspection. I am satisfied that the tenant failed to remove all rubbish. The photographs show that the tenant left a significant amount of rubbish at the property, including furniture, beds, clothing, and appliances, none of which appears to have any value. There is also general household rubbish including food waste. The amount claimed includes labour and waste disposal costs, and based on the evidence, is in my view reasonable.
- Ms Cawte’s evidence is that an infestation of fleas, cockroaches, and rats affected the property. In addition, the landlord has produced email statements from the pest control company, the contractor engaged to maintain the grounds, and a tradesperson each describing an “infestation.” Having viewed the photographs, the property’s state of uncleanliness was likely a significant contributing factor. I am satisfied that the tenant has, more likely than not, by act or omission caused the infestation to occur.
- The lawn area surrounding the house is generous. The photographs of the lawn at the commencement of the tenancy show it in a reasonably tidy condition. At the end, the lawns were left severely overgrown. To return the lawn to a reasonable condition a weed eater was first used. The lawn was then mown at least three times, with three or more large trailer loads of grass clippings removed. While the amount claimed is significant, it is, in my view justified based on the evidence.
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. Fair wear and tear is damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
- 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.
- In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord. For the purposes of the Act carelessness has its normal meaning of lack of care, negligence, or lack of foresight.
- 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.
- 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. A tenant is liable for the full cost of repairing damage that they have caused intentionally.
- In awarding compensation for damage, the Tribunal must consider 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. Damage to the carpet ($4,227.50)
- The pre tenancy inspection report records the carpet, in the rooms where it is present, to be in a “near new” condition. At the end of the tenancy the landlord states that the carpet was so stained and soiled that it was damaged beyond repair and required replacing. The landlord has insurance for careless damage by tenants with an excess of $550.00 per claim. In this case the landlord argues that the damage was intentional and that the tenant should be liable for the full replacement cost. Apart from one photograph showing a large stain to the carpet, which is partially obscured, there are however, no other photographs on which a proper objective assessment can be made. While I am satisfied that it is “likely” that the tenant has damaged the carpet, on the evidence, I cannot be satisfied to the required standard, more “likely than not,” that the tenant is liable. The claim is dismissed. Damage to walls ($11,327.50)
- The property was constructed in the 1960s, consists of three bedrooms, lounge / dining room, kitchen, laundry, bathroom, and toilet. Apart from the kitchen vanity the property retains its original features. Although the landlord is unable to state when the property may have been redecorated, Ms Cawte is certain that it must have been at some stage and estimates the wallpaper on the walls to date to the late 1980s early 1990s. The pre tenancy checklist does not record any damage to the walls and doors. Although the pre tenancy photographs are not the clearest they appear to confirm that the walls and doors were in a reasonable condition. The end of tenancy photographs produced by the landlord show damage to significant a number of walls and doors. The damage consists of scrapes, dings, dents, unbridled graffiti, and tearing to the wallpaper throughout the property. There are holes in a bedroom door, two holes in walls in the hallway, two in walls in the lounge, and a wall in the kitchen. There are larger holes in the laundry door, one of the bedrooms, and the hallway.
- Having considered the evidence I am satisfied that the damage has occurred during the tenancy and that it is more than fair wear and tear. The nature and extent of the damage, and the general condition of the property, suggests that the tenant has allowed a situation to continue knowing that damage was a certainty. On that basis I find the damage intentional. The tenant is therefore liable for the full cost of repair. I must however consider betterment and depreciation. The tenancy commenced in February 2017. At the commencement of the tenancy the wallpaper on the walls is estimated to be approximately 30 years old, and in a reasonable condition. The amount claimed includes removing the wallpaper throughout, repairing any damage, and then repainting all the walls, including those not damaged. The quote is broken into two parts, $3,000.00 + GST to repair and repaint the damaged doors, and $6,850.00 +GST to remove all the wallpaper and then paint the walls. Taking this into account I reduce the amount claimed to repair and repaint the doors by 20%, ($3,450.00 – $690 = $2,760.00) and the claim to remove the wallpaper, repair any damage, and paint walls by 40% ($7,877.50 - $3,151.00 = $4,726.50). The total award is $7,486.50.
- During the hearing Ms Cawte advised that the landlord had prior to the making of the application made a unilateral application for refund of the bond. I apply the bond of $1,400.00 to the amount awarded. Damaged heat pump ($2,100.00).
- The landlord claims that the pest infestation damaged the heat pump. There is however no evidence of how exactly the infestation has caused the damage. While the author of the invoice produced to replace the heat pump states that it has been damaged, it does not say why or how. There is no evidence, from someone suitably qualified as to why and how. There are also insufficient photographs on which to make an objective assessment. The claim to replace the heat pump is dismissed. Costs
- As Lodge City Rentals Limited as Agent for C Devadittiy has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
- Although the landlord has been substantially successful, and are entitled to seek name suppression, they do not do so.