Published tribunal order
Tenancy Tribunal case 4787437 — Property damage at 643 Manutahi Road, Lepperton, RD 3, New Plymouth 4373
Decided 1 May 2024 · Published 1 May 2024 · Application 4787437
Landlord favoured
- Property damage
- Rent arrears
Order
- Joshua Tocker must pay Shamice Mace Taylor, VBW Trustees No 1 Limited as trustees of the Taylor Family Trust (Kernow Property Management Limited (T/A Quinovic Property Management) - As Agent) $313.11 immediately calculated as shown in table below.
- The landlord’s claim for gardening work was withdrawn.
- The landlord’s claims for compensation for cleaning, rubbish removal, locks and a broken door, gas bottle refill, painting hallway, chairs, electrics (downlights/master bedroom/stairs/shed), bulbs, and smoke alarm replacement are dismissed.
Reasons
- Only the landlord attended the hearing represented by its property manager.
- The application was filed more than 2 months after the end of the tenancy. This means the usual service rules do not apply (s 91A, Residential Tenancies Act 1986 (RTA)). The landlord has confirmed with the tenant’s mother that the tenant is in prison and the application has been sent to that address. A text message showing this communication was provided to me.
- I am satisfied that posting the application to the prison was a step likely to bring the application to the attention of the tenant and therefore I proceeded with the hearing (s91B, RTA).
- In support of this, not only do I take into account the text message provided by the tenant’s mother, but I also take into account that when the application was first served at a different prison address it was returned to Tenancy Services as the sender. Later on, once the tenant’s mother provided a different prison address, the application was sent to that address and has not been returned. Burden of proof
- The Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the landlord) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
- As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
- 7. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented. I must weigh this evidence to decide what is more likely. Background
- The property is located rurally. The landlord says that the tenant rented the house and a garage. The landlord says linked to the garage is a large shed. This shed can be accessed via two internal doors from the tenant’s garage. The landlord says that these internal doors were locked and the large shed area never formed part of the tenanted area.
- The tenant became a tenant on 13 October 2022. Prior to that the landlord says that the tenant was a border, a different tenant was named on the tenancy agreement. A copy of a tenancy agreement signed on this date by the tenant as well as a change of tenant form was provided to the Tribunal to support this.
- At the very end of October 2023, the landlord says that a neighbour contacted the landlord (the owners) to advise them that the armed police had been at the property. The property was visited in the next few days (on about 2 or 3 November 2023) by the property manager and she says she was blown away by what she found.
- She says that there were two people living at the premises. She says that the shed area, kept for the owners use, had been broken into and a marijuana growing operation had been set up. There is no probative evidence of this.
- She says the property was like a tornado had gone through it. She says the people living at the premises were people known to the tenant who had permitted them to be there. The police had raided the property connected with a different offence and had stumbled across the marijuana then. The landlord says that the tenant was then arrested.
- The landlord says that the tenancy ended following the arrest of the tenant. No written notice was given by the tenant and no application made to the Tribunal but, following the discovery, the landlord says that there were discussions with the tenant’s mother, brother and his boss in the days that followed that made it very clear that the tenant was not returning. Arrangements were being made for the collection of his things. The landlord considers that the tenant effectively surrendered or terminated his tenancy in this way.
- The landlord accepts that it had possession of the property from 8 November 2023. Bond
- The landlord has obtained the release of the bond with the consent of the tenant who signed the bond form from prison.
- The bond of $1,840 was paid to the landlord. The reason recorded for the bond being paid to the landlord on the signed bond form is rent arrears.
- When making its application to recover the sum of $11,575.37 the landlord filed a table setting out its compensation and rent claim. The landlord accounted for receipt of the bond in reaching that figure.
- I have considered each item listed in full (arrears and each compensation claim) and then have applied the bond already held by the landlord in respect of the successful claims. Rent arrears
- The landlord claims rent arrears and provided a rent summary to the end of the tenancy.
- The landlord initially claimed rent arrears to 5 December 2023 but during the hearing accepted that the tenancy had ended and the landlord was in possession of the property from 8 November 2023 (and therefore that arrears are only applicable to this date). The amount of arrears up to and including this date is $962.86.
- The landlord has already had the bond signed over to it by the tenant and has received $1,840 from the bond. The bond form records the reason for the payment to the landlord as being arrears.
- I find that by the date of the hearing the arrears had already been satisfied by the payment of the bond. So, there can be no doubt, I have recorded in my order that the landlord is entitled to $962.86 in arrears to 8 November 2023 and the tenant has then been given credit for the bond already received from the Bond Centre. End of tenancy obligations
- 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) RTA. Cleaning and rubbish removal
- The RTA does not require the premises to be in an immaculate condition – only in a reasonably clean state. A house does not have to be cleaned to a professional standard or be ‘motel’ clean. There is no scientific way to determine what is reasonably clean. What is required is for the Tribunal to evaluate the evidence available (particularly photographs presented) and then consider whether the premises would be reasonably clean.
- There is no photographic evidence in this claim.
- The oral evidence was that the property was like a tornado had gone through it. The landlord says there was rubbish throughout the house and shed. The carpet of the house could not be seen from things on it and there was debris all over from the police raid. The landlord says that there were 50-80 bags of household rubbish in the tenant’s garage and that in the owner’s part of the shed there were hundreds of plant bags, soil, parts of cannabis plants, fans and growing tents. The landlord says there was broken glass though out. Debris was scattered on to the lawn where the landlord says the police had thrown the plants out of the shed. The property manager says that collecting all the rubbish and placing it in the skips from all the different parts of the property took her, her husband and a friend 14.5 hours. The landlord says that 2 skips were filled during this clean up.
- The sums claimed in invoices are $2,001 for the 14.5 hours of rubbish clean up (raised by property management company itself), $485 x2 for two skips and $1,186.81 for the cleaning of the house including carpets and oven.
- The landlord’s difficulty in establishing its claim is that there is no photographic evidence whatsoever or other probative evidence relating to the condition of the property at the end of the tenancy.
- I have considered carefully if an award can be made based on the oral evidence but I decline to do so. This is because ultimately, even if it is proven that the property was not left reasonably clean and tidy, I am unable to know, from just the oral evidence presented, whether the sums claimed are reasonable. The Tribunal cannot guess.
- Further, the narrative of the invoice for cleaning the house indicates that the work claimed for would have, more likely than not, taken the premises to a state better than the tenant was required to return it in (e.g. wet wiping ceilings).
- Further, part of the cleaning and rubbish removal claim related to labour and rubbish removal from part of the premises that the landlord says that the tenant broke into and did not in fact form part of the tenanted area – the tenant had no right to be in this area.
- A tenant’s obligations under the RTA to leave the property reasonably clean (or in relation to damage - see below) applies to ‘the premises’, being the premises that they have rented. If a tenant breaks into a different premises, that he or she has no right to be in and causes damage (or causes a need to clean or remove rubbish) then this would fall outside the jurisdiction of the Tenancy Tribunal. This is because there is no landlord/tenant relationship in respect of those premises. If this was not the case a tenant could be liable for cleaning or damage under the RTA that he does to a landlord’s property that could be next door, three streets away or even in the next city. I find that the fact that the property that was broken into is directly adjacent or attached to the tenanted area does not change this.
- The landlord’s claim for cleaning and rubbish removal is therefore dismissed. Garden
- The landlord withdrew its claim for garden work. Locks
- The landlord sought sums for the replacement of locks at the property as follows: a. Front door b. Door to the side of the garage c. Re-coding of remotes d. 2 internal doors leading from garage to landlord’s retained area
- It is not sufficiently proven why the landlord needed to recode remotes because the landlord’s evidence is that the remotes had been left at the premises. This part of the claim is dismissed.
- The landlord says the key to the front door and side garage door were not returned. There is insufficient evidence to establish what keys the tenant had been provided with at the start of the tenancy and therefore this part of the claim is dismissed.
- The landlord says that the internal doors in the garage leading to the shed had been smashed or kicked in. The tenant did not have keys to these doors (these being the doors to the area the landlord did not rent to the tenant). This is therefore best considered as damage rather than a failure to return keys, and I have considered this below. Gas bottles
- The landlord claimed to refill gas bottles. There was no probative evidence that the bottles were full at the start of the tenancy. There was no receipt or invoice to prove loss. This part of the claim is dismissed. Bulbs
- I have dealt with bulbs below. Damage
- 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.
- I must also take 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 the age and condition of the items at the start of the tenancy and their likely useful lifespan is considered. Hallway painting
- The landlord claims for painting one hallway wall which they say the tenant repaired himself but did not paint. The landlord described the size of the hole that was fixed as being that associated with a fist (about 20cm in diameter). The landlord says the repair job is satisfactory in terms of the patch work, but it was not painted.
- There is no probative evidence to show that the damage that the landlord said occurred during the course of the tenancy or to show the paintwork that was required. There is also no probative evidence in relation to the state of repair of the hallway generally – either at the start or at the end of the tenancy that would allow me to consider if a deduction is required for betterment.
- Therefore, the landlord has not met the necessary burden of proof. This claim is dismissed. Chairs
- The landlord claims that chairs which were chattels as part of the tenancy agreement were wobbly and broken in some areas. The landlord says it was as if they had been thrown. The landlord says they needed to be glued together.
- The chairs are not listed as a chattel in the tenancy agreement provided. There was no photographic evidence to support the claim for damage or the nature of the damage or the condition of the chairs at the start of the tenancy. Based on the evidence presented, I am also unable to determine if the sum claimed is reasonable.
- The landlord has not met the necessary burden of proof. This claim is dismissed. Downlights
- The landlord says that the tenant caused damage by removing all of the downlights at the property. The oral evidence was that the ‘cups’ that the bulbs nested in had been removed from the ceilings and the bulbs were also missing throughout. The landlord says that some of them were found in the shed in the marijuana growing operation referred to above.
- Other than an electrician’s invoice, the landlord had no probative evidence of this damage.
- The invoice sets out the work done across the property. The landlord says that the entry on the invoice for 18 downlights and 5 downlights relates to this part of the claim. The landlord was not completely certain. At the start of the hearing it was said that the claim related to the 18 lights but later on a further 5 lights, said to be in the kitchen, were added.
- There is no probative evidence to support the claim that the damage occurred during the course of the tenancy or the extent of the damage claimed. The oral evidence and the lack of probative evidence means that the claim was not sufficiently established. The landlord has not proven that the damage occurred during the course of the tenancy.
- In any event, the absence of probative evidence both at the start and at the end of the tenancy also means that I am also unable to consider or if the sum is reasonable or if a deduction is required for betterment. I am also unable to see if like was replaced with like.
- There is no probative evidence of the number of bulbs working at the start of the tenancy.
- The landlord has not met the necessary burden of proof. This claim is dismissed. Master bedroom lights
- The landlord says that one wall light in the master bedroom was squished and the other was scrunched. The landlord says they are two wall lights like silver bullets. Again, there is no probative evidence other than the electrician’s invoice. There is no probative evidence of the condition of the lights at the start of the tenancy to support the claim the damage occurred during the course of the tenancy or the extent of the damage. The landlord has not proven that the damage occurred during the course of the tenancy.
- In any event, the absence of probative evidence both at the start and at the end of the tenancy also means that I am also unable to consider or if the sum is reasonable or if a deduction is required for betterment. I am also unable to see if like was replaced with like.
- The landlord has not met the necessary burden of proof. This claim is dismissed. Stair tread lights
- The landlord says that stair tread lights were damaged so that they had to be replaced. The landlord also says the bulbs were all gone.
- Again, there is no probative evidence other than the electricians invoice. There is no probative evidence of the condition of the lights at the start of the tenancy to support the claim the damage occurred during the course of the tenancy or evidence of the working bulbs. The landlord has not proven that the damage occurred during the course of the tenancy.
- In any event, the absence of probative evidence both at the start and at the end of the tenancy means that I am unable to consider if the amount claimed is reasonable or if a deduction is required for betterment. I am also unable to consider if like was replaced with like.
- The landlord has not met the necessary burden of proof. This claim is dismissed. High up bulbs
- The landlord did not pursue the claim to replace bulbs which it said were high up and so they would not expect the tenant to have to change these. In any event there was no probative evidence of condition. This claim is dismissed. Electric safety
- The landlord claims for the cost of repairs to electrics in the shed. The landlord says that wires had been cut. No lights were working. The landlord says it was a safety concern. The electrician’s invoice provided refers to making electrics safe in the shed.
- Again, there is no probative evidence of the damage or the condition of the premises at the start of the tenancy (or even during it). I asked the landlord at the hearing which part of the electrician’s invoice related to this part of the claim (to establish loss) as there were many items on the invoice. The response was that the amount couldn’t be said. The landlord then suggested there had been no charge for this part of the work.
- I dismiss this part of the claim. The nature of the damage the landlord says occurred during the course of the tenancy in relation to electrics is wholly unclear.
- There is no probative evidence showing the nature or extent of the damage. There is very limited information on the invoice to establish what the required work was. In any event, the invoice does not sufficiently establish loss in relation to this part of the claim.
- Further, for reasons set out above, to the extent any damage fell outside the areas rented to the tenant this would not fall within the jurisdiction of the Tribunal.
- The landlord has not met the necessary burden of proof. This claim is dismissed. Locks to interior doors of garage and new timber door
- As set out above the landlord claims for the cost of locks on the internal doors in the garage leading to the landlord’s own area and a new timber door.
- Again, other than an invoice for the work, there is no probative evidence of the damage. The landlord’s evidence was not clear in relation to this part of the claim.
- Initially the landlord said that two new doors were needed. The landlord then said one door was completely smashed and one could be reused. The landlord clarified that the claim for the lock to the internal door was just one of the three new lock barrels listed on the invoice for $210 GST.
- The landlord sought a sum in relation to bolts being put on the two internal doors. When asked why the tenant would be liable for this the landlord conceded that they would not.
- I dismiss this part of the claim. There is insufficient evidence to establish the damage done during the course of the tenancy. The oral evidence was not sufficient to establish liability for the damage and the necessary repairs. The invoice that the claim is made upon refers to items not mentioned at all in the landlord’s oral evidence (the invoice also refers to knob sets).
- No evidence as to the condition of the doors or their locks at the start of the tenancy was presented. I am unable to see if like was replaced with like and unable to properly consider betterment and depreciation.
- The landlord has not met the necessary burden of proof. This claim is dismissed. Smoke alarm
- The landlord claims for a smoke alarm but there was insufficient evidence, both oral and probative to establish this claim. The landlord has not met the necessary burden of proof. This claim is dismissed. Glass
- The landlord says that the tenant had broken glass during the course of the tenancy. In the context of the cleaning claim, the property manager says she saw broken/smashed glass at the end of the tenancy in November.
- The landlord says that the glass was broken when she went to the property in November but the oral evidence is that it was fine previously. The property manager says that she knows this from seeing previous property inspections and general office discussions with the property manager for this property. She says the previous property inspection done in July did not cause any concerns although no past property inspection reports were made available at the hearing.
- The landlord says glass was broken in the side shed door and that panels were broken in a colonial style window in the stairwell. The landlord says that there are panels in the window in the stairway but several of them had been smashed. She says it is specialist glass. She observed the smashed windows herself when visiting the property at the start of November.
- There is no photographic evidence of the condition of the glass or the subsequent breakage. However, I accept her clear submission that she discussed the property in her open office environment and in a July inspection there were no issues identified and the tenant was at that time regarded as a good tenant.
- The invoice records that toughened glass was used in the stairway and that would be consistent to the usual position when glass is placed at a height such as in a hallway.
- Importantly, the repairs that are described by the landlord are supported by the independent invoice which is itemised.
- I consider that the replacement of glass panels is not a claim which requires depreciation. The landlord has not obtained a benefit by replacing broken glass.
- I carefully considered whether to award the landlord this sum in the absence of other probative evidence to support the oral evidence. I have ultimately concluded that this part of the claim may be approached differently to that above because the oral evidence was clear here and it was supported by a clear independent invoice detailing the work. It is more likely than not that smashed glass is not fair wear and tear and the tenant has not disproved liability for the damage. Importantly, I also consider that a decision to replace smashed glass requires very little assessment when it comes to deciding whether or not it is broken (it will either be broken or not) and what is required to fix it (it will need replacing). Further, there is no reason to apply betterment/depreciation as the landlord will have no benefit from replacing previously unbroken glass.
- I therefore award the landlord $1,190.25 in respect of the repair of the glass. I have accounted for this in my order and the remaining credit from the bond already held by the landlord has been applied to it. Observations on evidence
- There was a particular lack of probative evidence in this case. There was not one photograph of the property either before, during or after the tenancy. There were also no written property inspections presented whatsoever. Throughout the hearing the landlord repeated a regret for not taking photographs and said this was due to shock.
- However, the lack of photographic and other probative evidence of damage and the condition of the property has ultimately meant the landlord could not meet the civil burden of proof in relation to many of its claims.
- A full final inspection, including photographs, is always prudent once a tenancy has ended. Filing fee
- The landlord has had limited success. A significant number of its claims were unsupported. I decline to award the filing fee. Suppression
- The landlord sought name suppression in its application.
- Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings.
- The landlord was not wholly or substantially successful and therefore I decline to award name suppression.