Published tribunal order
Tenancy Tribunal case 4734224 — Property damage at Unit/Flat 1, 111 Spinella Drive, Bayview, Auckland 0629
Decided 18 Jun 2024 · Published 18 Jun 2024 · Application 4734224
Landlord favoured
- Property damage
Order
- Sativa Jones-Tohu, Kayla Emma-Mary Kahukura Marsters and Rangitakau Maiana Tekii must pay Fair Rentals Limited As Agent For Abhijit Kumar $1,631.20 immediately, calculated as shown in table below.
- The tenants’ application is dismissed.
Reasons
- Both parties attended the hearing. There was no attendance by the tenant Kayla Marsters.
- The landlord has applied for water arrears, compensation, and reimbursement of the filing fee following the end of the tenancy.
How much is owed for water rates?
- The tenancy ended on 13 November 2023. The landlord provided water rates invoices which prove the amount owing at the end of the tenancy. Having sighted this evidence I am satisfied that the tenants are responsible for this debt.
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 is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- This was a late claim by the landlord.
- The landlord claims that the tenants did not leave the premises clean and tidy. The only evidence filed in support of this claim is an invoice from SNMP Sparkle Services dated 20 November 2023.
- The landlord has not provided any entry photographs confirming the state of the premises when the tenants moved in. I also do not have any exit photographs taken at the time the tenants moved out. In the absence of such evidence, I am not satisfied that the basis of this claim is made out.
- Accordingly, the claim for cleaning is dismissed.
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.
- 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. Sliding door glass replacement:
- The landlord claims that the tenants broke the bottom glass in the sliding door. An invoice dated 27 February 2023 has been provided by the landlord in support of this claim. The tenants accept that the glass was broken during their tenancy. Bedroom window glass replacement:
- The landlord says that the 3 rd tenant notified them that the bedroom window had been broken. The landlord provided an invoice from Superior Glass dated 20 July 2023 in support of this claim.
- The tenants do not dispute this claim and accept that this happened during their tenancy.
- The amounts ordered in respect of the sliding door glass and bedroom window are proved. Sliding door lock:
- The landlord claims that the tenants damaged the sliding door lock. They say that the sliding door lock was not aligned up and was not locking and had to be replaced. The lock was less than two years old.
- No photographic evidence, other than a invoice from Hari Dhakal dated 27 February 2023 for “door lock replace”, was filed by the landlord in support of this claim.
- The tenants say that the glass repair man had to take the entire door off. When the door was put back the lock did not work properly. The tenants also say that the lock was lose after the door was put back.
- The landlord has not, in my view, proved this claim on the balance of probabilities. Other than an invoice I find there is no evidence linking the tenants to this damage as alleged.
- Accordingly, the claim for compensation for a sliding door lock replacement is dismissed. Blind replacement in lounge:
- The landlord says that they had to replace a blind in the lounge which the tenants are responsible for. The landlord has not provided any photographic evidence provided in support of this claim. At the very least I would have expected entry photographs taken at the start of the tenancy and exit photographs taken when they vacated.
- The claim in respect of blind replacement is also dismissed. The tenants’ cross application:
- On 14 August 2023, the landlord gave the tenant a notice ending the tenancy on 13 November 2023.
- The tenants claim the notice is retaliatory.
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
- Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
- The tenants’ claim that the landlord’s termination notice is retaliatory was filed out of time. Unfortunately, the tenant’s cross application in respect of this must be dismissed.
- The landlord confirmed during the hearing that the bond amount of $2800.00 was paid to the landlord on 17 November 2023. The bond paid settled the rent arrears of $2750.00 leaving a credit of $50.00 towards the remaining debt.
- Because Fair Rentals Limited As Agent For Abhijit Kumar has substantially succeeded with the claim I have reimbursed the filing fee.
- The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case – section 95A Residential Tenancies Act.
- The tenants sought suppression of their names. However, the tenants were not wholly or substantially successful. Accordingly, I do not order suppression of the tenants’ names.