Published tribunal order
Tenancy Tribunal case 4550082 — Property damage at 154 Hanson Street, Newtown, Wellington 6021
Decided 1 Nov 2023 · Published 1 Nov 2023 · Application 4550082
Landlord favoured
- Property damage
Order
- The Bond Centre is to pay the bond of $1000.00 (3208151-011) to Mr and Mrs Lange immediately in accordance with the following table:
Reasons
- This is an application by Mr and Mrs Lange for their costs to remove rubbish and to rectify damage to the tenancy property. They seek release of the bond to cover these costs in part.
- The hearing was adjourned part heard to allow for service on the correct tenants to be included in the application, and for further service to Mr Milson. The hearing was resumed today via teleconference. Mr and Mrs Lange attended the hearing. However, when Mr Milson was contacted the call went to voicemail. I left a message about the hearing. I attempted contact approximately five minutes later. The second call was not picked up, presumably because the phone had been turned off. I am satisfied that Mr Milson has been correctly served with the notice of hearing and, accordingly, decided to resume the hearing in his absence. Background
- The tenancy began on 29 May 2014 and ended on 31 May 2022. After the tenancy ended, it was found that the property was not in a fit state to be relet. Walls and flooring were damaged and stained. Ceilings were filthy and discoloured. A large amount of rotten food, broken household appliances, and other rubbish had been left throughout the property and its grounds. Mr and Mrs Lange referred to numerous instances of damage, many of which have not been claimed for.
- Mr and Mrs Lange have brought the following claims a. removal and disposal of rubbish$ 226.00 b. replacement of a damaged bathroom vanity$ 443.33 c. replacement carpet throughout$10,046.00 total$10,715.33
- I will deal with each of these claims in turn.
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) Residential Tenancies Act 1986 (RTA). Removal and disposal of rubbish
- Mr Mrs Lange have provided photos which show large amounts of furniture, dirty crockery, blankets, kitchen utensils, plastic containers, buckets, wrapping paper, electronic goods clothing, empty boxes, and other goods left in various rooms. Additionally, mattresses, boxes, broken furniture, a bicycle, and various items of broken whiteware were dumped under the deck. They have also described rubbish lying around the property.
- Mr and Mrs Lange’s evidence is that they spent several days cleaning up this rubbish and have provided receipts from the Wellington City landfill for the disposal of over 900 kg of waste. They have claimed the tipping fees for disposing of the rubbish, totalling $226.
- I am satisfied that these costs are reasonable and justified, and award them in full.
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), 40(4) and 41 RTA.
- In Holler and Rouse v Osaki [2016] NZCA 130, the Court of Appeal ruled that provisions in the Property Law Act 2007 which relate to commercial tenancies also apply to residential tenancies. As a consequence, tenants are not required to pay for the cost of repairing damage in a number of circumstances, including where the damage is caused by fire or is of a kind covered by the landlord's insurance. There are exceptions to this general rule. For example, if the damage is intentional, the tenant is required to pay the cost of repairs.
- 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 virtually certainty.
- In Tekoa Trust v Amanda Stewart [2016] NZDC 25578, the tenant’s dog caused damage by urinating on the carpet on multiple occasions. The Court noted that that the tenant had allowed the dog inside in breach of a specific term of the agreement. Although that breach did not itself cause the loss, the Court went on to say: However, after a dog had urinated on the carpet once or possibly twice, continuing to allow the dog to enter the property on numerous occasions, which would have been required to damage the carpet to the extent shown, was a deliberate intentional act by the tenant.
- The Court approved the following definition of intentional damage: Conduct will be intentional when it is deliberate, and not accidental, and the [resulting damage] ...will be intentional if the defendant meant to cause it or (probably) knew that it was virtually certain to result. Bathroom vanity
- Mr and Mrs Lange claim the replacement of a damaged bathroom vanity. Their evidence is that the basin was cracked by what appeared to be an impact. The crack had led to a leak, and water had been soaked into the MDF carcass of the vanity leading to irreparable damage. They purchased a replacement vanity from Bunnings, and Mr Lange installed the replacement himself. They claim $444.33, the cost of the replacement.
- From the photos, and Mr and Mrs Lange’s description of the damage, I am satisfied that the tenants are responsible for the damage, and that it is not fair wear and tear. While the initial impact may have been accidental, the water damage to the carcass was due to ongoing use of the sink while it was leaking meaning damage was a virtual certainty and was therefore intentional. The water damage would have necessitated the replacement of the entire unit on its own. The cost of the replacement is fair, although I note that the invoice provided also includes $17.98, for a domestic item not related to the replacement of the vanity. Subsequently, I award $425.35 for the replacement of the vanity. Carpet
- The carpet is approximately 15 years old and was in good condition when the tenancy began. On re-entry Mr and Mrs Lange discovered numerous stains from oil, grease, paint, and other unknown substances. Mrs Lange referred to the carpet stinking. An attempt was made to clean it but was unsuccessful.
- Viewing the photos, I note numerous instances of staining and damage to the carpet. While Mr and Mrs Lange have not been able to provide any evidence of the pre-tenancy condition of the carpet, I accept the evidence that the carpet was in good condition when the tenancy began. I note the photos of the condition of the carpet, and Mr and Mrs Lange’s description of the damage, and conclude that it was not salvageable.
- Viewing the photos, and hearing from Mr and Mrs Lange, I conclude that the damage to the carpet is not wear and tear. The staining is extensive, and is far beyond what would be normal wear, or accidental damage, in a residential situation. I find the damage was either intentional or careless.
- Carpet is an item which is subject to depreciation. Normally carpet will have a lifespan of approximately 15 years, and I note that this carpet was near the end of its life span. However, even older carpet has residual amenity value.
- Mr and Mrs Lange are only seeking to have the bond paid to them. They describe, and the photos show numerous other instances of damage to walls, doors, kitchen cabinetry, the stove, and kitchen vinyl, amongst others. Had they sought the cost to repair this damage I would have considered it. In this instance I am satisfied that the residual value of the carpet would have been at least the $348.65 required to bring a total award to the $1,000 sought.
- Therefore, I award $348.65 towards the replacement cost of the carpet. Outcome
- I order that the bond centre is to pay the bond of $1000 to Mr and Mrs Lange immediately.