Published tribunal order
Tenancy Tribunal case 4590631 — Property damage at 70 Parrs Cross Road, Henderson, Auckland 0612
Decided 13 Sept 2023 · Published 13 Sept 2023 · Application 4590631
Landlord favoured
- Property damage
- Cleanliness
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- This Order is an updated and corrected version replacing the Order of the same number issued on 12 September 2023.
- Justice Juanita Krishka Jane Reti and Hayden Atlanta Alumakitama must pay Fahey Property Management Limited, Karen Phelps and Rebecca Grinter $3139.79 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,900.00 (5198120-010) to Fahey Property Management Limited, Karen Phelps and Rebecca Grinter immediately.
Reasons
- Angela Fahey for Fahey Property Management Ltd attended the hearing as the landlord; Justice Reti and Hayden Alumakitama attended the hearing as the tenants.
- The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
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.
- The tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish.
- The amounts ordered are proved.
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.
- 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: a. Bedroom 1: Holes in wall and door. Marks and heavy scrapes to wall. b. Bedroom 2. Holes and damage to walls. c. Bedroom 3. Gouge to wall. d. Lounge. Holes in wall. e. Broken light fittings, light switches and power sockets. f. Complete removal of the security alarm unit.
- The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- The amounts ordered are proved.
- 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.
- Because Fahey Property Management Limited, Karen Phelps, Rebecca Grinter has substantially succeeded with the claim I have reimbursed the filing fee.