Published tribunal order
Tenancy Tribunal case 4686849 — Property damage at Unit/Flat Flat 3, 20 Willoughby Street, Whitiora, Hamilton
Decided 6 Dec 2023 · Published 6 Dec 2023 · Application 4686849
Landlord favoured
- Property damage
- Cleanliness
- Rent arrears
Order
- Stephanie August must pay Quality Rental Management Limited As Agent For Gina Mcmurdoch-Sontgen $3,595.93 immediately, calculated as shown in table below.
- This order incorporates the Tribunal order made on 9 August 2023 under application 4629029.
Reasons
- Mr Fyfe and Miss Christensen attended the hearing for the landlord. The tenant did not attend.
- The landlord has applied for rent arrears, compensation, incorporation of a previous Tenancy Tribunal order and reimbursement of the filing fee following the end of the tenancy. The landlord made a one-party application to the Bond Centre for the bond prior to the hearing, and currently holds the bond. How much is owed for rent, including the rent previously ordered and incorporated into this order?
- The tenancy ended on 16 August 2023 as a result of the tenant failing to pay rent and rent arrears due under the conditional termination order dated 9 August 2023 (application 4629029).
- Under the previous order the Tribunal made an order for rent arrears to 9 August 2023 and for reimbursement of the filing fee. The previous order is incorporated into this order for enforcement purposes.
- Rent is also owed from 10 August 2023 to the end of the tenancy.
- The landlord provided rent records which prove the amount owing at 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 (RTA).
- The tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish.
- The bathroom mirror was missing at the end of the tenancy.
- 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 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. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage:
- Holes in Walls and Doors: Damage was caused during the tenancy to walls and doors. At the end of the tenancy there were 4 holes that required plastering and painting, as well as at least 6 areas/holes that had been roughly plastered and not painted. The plastering that had been done was not done to a workmanlike standard. I find the damage was intentionally caused and that the costs claimed are reasonable for the work required.
- Repairs to Venetian Blinds: A number of slats in the venetian blinds in the small bedroom and the lounge were broken and required replacement. Given the number of slats broken I find the damage is intentional as it would have apparent that whatever the tenant or others at the property with the tenant’s permission were doing was breaking the blinds. The cost claimed to repair the blinds is less than the cost to replace.
- Replace melted carpet in small bedroom: An area of the carpet in the small bedroom has been melted by something hot, such as a hair straightener, coming into contact with the carpet. I find the damage is more likely to be caused carelessly than intentionally. The cost of replacing the carpet, after considering betterment and depreciation, is more than the landlord’s insurance excess ($250.00). Accordingly the tenant is liable to pay the excess of $250.00.
- Repair to socket: A socket was hanging loose from the wall at the end of the tenancy. I consider the damage was carelessly caused and the tenant is liable for the cost to repair ($66.99).
- The amounts ordered are proved.
- Filing Fee: As the landlord has wholly succeeded with the claim I must reimburse the filing fee.