Published tribunal order
Tenancy Tribunal case 4759098 — Property damage at 30 Clivedon Place, Redwood, Christchurch 8051
Decided 28 Feb 2024 · Published 28 Feb 2024 · Application 4759098
Landlord favoured
- Property damage
- Cleanliness
Order
- Sonya Isabel Turner must pay Vision Property Management Limited as agent for Nick and Tammie Grant $1,064.00 immediately, calculated as shown in table below.
- The landlord’s claim for exemplary damages is dismissed.
Reasons
- Ms Chaplin attended the hearing on behalf of the landlord.
- The original hearing date was 26 January 2024. The tenant advised that she was unable to attend but would be available by telephone. The adjudicator was not aware that Ms Turner wished to be contacted by telephone until after the hearing.
- In those circumstances the hearing was adjourned to enable the tenant to attend.
- The tenant contacted tenancy services in relation to this hearing on 26 February 2024 but, nevertheless, did not attend the hearing two days later.
- The landlord has applied for compensation, exemplary damages 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 under section 40(1)(e)(ii)-(v) of the Residential Tenancies Act 1986 (the Act).
- The landlord allowed the tenant to have an extra day to clean the property. However, the tenant did not leave the premises reasonably clean and tidy in all respects.
- The landlord provided photographs and invoices to support its claim for $80.00 for cleaning and $290.00 for carpet cleaning (including special treatment required for urine stains).
- There was a waste trap missing at the end of the tenancy. The landlord provided evidence to show that the replacement waste is valued at $146.07.
- 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 under sections 40(2)(a), 41 and 49B of the Act.
- Where the damage is careless, and occurs after 27 August 2019, section 49B of the Act applies. If the landlord becomes aware of the damage after 27 August 2019, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
- 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).
- During the tenancy, the carpet in the room off the garage was damaged beyond repair. This room was described as “in very good condition” in the first inspection report relating to the tenancy dated 22 January 2020. The damage is more than fair wear and tear and the tenant has not disproved liability for the damage.
- I have taken into account betterment and depreciation in relation to the carpet. 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 allowed 50% of the cost of the replacement carpet having considered the fact that the original carpet was in good condition but at least eight years old.
- The landlord provided evidence of damage to the walls in various rooms. The damage occurred during the tenancy and, in most cases, is more than fair wear and tear.
- As a number of rooms have been fully repainted, I have allowed 75% of the cost of the overall plastering and painting to take into account that some of the damage shown reflects fair wear and tear following a four-year tenancy.
- During the tenancy the garage and room off the garage were padlocked and not available for inspection by the landlord for some time. The windows were painted black, and the automatic doors were disconnected and damaged.
- The landlord has provided photographs and invoices to show that the garage door and garage electrics were damaged and had to be replaced or repaired. The damage occurred during the tenancy and is more than fair wear and tear. The tenant has not disproved liability for the damage.
- The amounts ordered are proved. Exemplary damages
- The landlord claims that the tenant has used the premises unlawfully, by using or allowing the room off the garage to be used for the hydroponic cultivation of cannabis.
- A tenant must not use the premises or permit the premises to be used for an unlawful purpose under section 40(2)(b) of the Act. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00 under section 40(3A)(c) and Schedule 1A of the Act.
- It is unlawful to cultivate cannabis under the Misuse of Drugs Act 1975.
- The landlord provided photographs and oral evidence to show that cannabis was cultivated hydroponically in the room off the garage during the tenancy.
- The evidence provided suggests that the tenant had allowed another person to use the garage and room to store their belongings. She said in emails provided to the Tribunal, that he seldom came to the property. There is no evidence that the tenant knew that anything illegal was being done in the room off the garage. When asked about the carpet damage in that room the tenant said that her ex- partner had two freezers in the room which had damaged the carpet. This explanation is certainly possible.
- Although I acknowledge that this room may have been used to cultivate cannabis, I am not satisfied that the tenant knew that the room was being used for such a purpose.
- To make an order for exemplary damages, I must be satisfied that the person against whom the order is sought, intentionally committed the unlawful act. In this case, I cannot be satisfied that the tenant intentionally allowed the premises to be used for an unlawful purpose.
- Therefore, it is not just to require the tenant to pay exemplary damages and that part of the landlord’s claim is dismissed. Filing fee
- As Vision Property Management Limited as agent for Nick and Tammie Grant has substantially succeeded with the claim I must reimburse the filing fee.