Published tribunal order
Tenancy Tribunal case 4563021 — Property damage at Unit/Flat 2A1, 29 Maunganui Road, Mount Maunganui,
Decided 16 Aug 2023 · Published 16 Aug 2023 · Application 4563021
Landlord favoured
- Property damage
- Lost Rent
Order
- Krystelle Toko must pay Boutique Rentals Bop Limited $4,120.29 immediately, calculated as shown in table below.
Reasons
- The landlord attended the hearing. The tenant did not appear.
- The landlord has applied for compensation, refund of the remaining balance of the bond, and reimbursement of the filing fee following the end of the tenancy.
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 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: multiple holes and marks on walls, and multiple carpet stains throughout that could not be removed by cleaning. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The landlord has provided correspondence from a loss adjuster which confirms the applicable insurances excesses. The amounts ordered are proved.
- The landlord has applied for 11 weeks lost rent while the repairs were being carried out. I award 3 weeks lost rent as fair, reasonable and proportionate compensation. There must be a reasonable allowance for some loss of rent between tenancies, particularly where a tenancy has lasted for some time.
- Because Boutique Rentals Bop Limited has wholly succeeded with the claim, the tenant must reimburse the filing fee.