Published tribunal order
Tenancy Tribunal case 4811298 — Property damage at Unit/Flat 1917, 10 Waterloo Quadrant, Auckland Central,
Decided 12 Jun 2024 · Published 12 Jun 2024 · Application 4811298
Landlord favoured
- Property damage
- Rent arrears
Order
- Shannon Emily Vogt and Jared David Neely must pay Inspire Property Management Limited as agent for Joanne Wright $6,549.01 immediately, calculated as shown in table below.
Reasons
- Only the landlord attended the hearing.
- The hearing was due to start at 9.30am. I delayed the start of the hearing by ten minutes in case the tenants were late. Mr Neely did not appear. At approximately 9.50am, after the hearing had begun, I was made aware that Ms Vogt had contacted the Tribunal at 9.25am by email to say that she would not be appearing as she had tested positive for Covid-19. Ms Vogt did not seek an adjournment. In the circumstances the hearing continued without an appearance by either tenant.
- The landlord has applied for rent arrears, compensation and reimbursement of the filing fee following the end of the tenancy.
How much is owed for rent?
- The tenancy ended on 29 December 2023. At the hearing today the landlord sought rent arrears of $2,518.57 to the end of the tenancy.
- However on checking the bond following the end of the hearing it is apparent that the landlord already has an order for rent arrears to 19 December 2023 (see [2023] NZTT 4731669). At that stage rent arrears were $3,470.00 and the bond of $1,480.00 we released to the landlord.
- I am only able to make an order for rent arrears which has not already been ordered. I therefore make an order for rent arrears from 20 December 2023 to 29 December 2023 (10 days at $52.85 per day), in the amount of $528.57.
- I was not asked to make an order incorporating the previous order for enforcement purposes (and was not made aware of the previous order at the hearing) and so have not done so. Charge for breach of Body Corporate rules
- The landlord received a notice from the Body Corporate on 9 December 2023 advising that a warning had been issued to the tenants at 11.00am that morning following authorisation by the Body Corporate committee. The notice stated that the tenants had breached the operational rules of the Body Corporate as follows: a. Noise – “Disturbing neighbour rooms early morning around 6.30am”; and b. Other – “Tenants kept fighting and shouting, throwing stuff”.
- The landlord has been issued with an invoice dated 12 December 2023 for the tenants’ breach of the Body Corporate Rules in the amount of $1,000.00 including GST.
- Clause 11 of the Tenancy Agreement records that the Body Corporate rules bind the tenants to the extent that they do not conflict with their rights under the Residential Tenancies Act 1986 (“RTA”).
- I do not consider that the Body Corporate rules conflict with the RTA. The RTA specifically provides that tenants shall not “cause or permit any interference with the reasonable peace, comfort, or privacy of ...any other person residing in the neighbourhood” (see section 40(2)(c) RTA).
- I consider that the tenants are liable for the charge for breach of Body Corporate rules that has been issued to the landlord.
- This claim is 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.
- 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. Kitchen: wall damage, kitchen benchtop missing sections, gouged and chipped; b. Bedroom: wall damage including large hole, bi-fold door and tracks damaged, wardrobe doors damaged, carpets stained and has cigarette burns; c. TV room, lounge, passage: damage to walls, carpet stained, front door damaged including lock has been removed; d. Bathroom: Walls damaged, bathroom floor tiles are cracked; e. Contents/chattels: Hole in couch, bed missing legs, table damaged and drawn on, outside heat pump unit spray painted, indoor heat pump unit missing flap.
- The landlord provided move-in inspection photos dated 4 February 2024 showing the condition of the various rooms and items, together with routine inspection photos dated 2 May 2024 (which show the property to be clean and well cared for at that stage), together with move-out inspection photos dated 29 December 2024 showing the damage described above.
- The landlord provided a quote in the amount of $32,648.00 for repair of the damage. The landlord’s insurer has approved an insurance claim by the landlords but has applied an excess of $1,000.00 to each of the areas damaged and for the damage to the contents/chattels. The landlord confirmed that the work has proceeded in accordance with the quote and that the landlord has paid all of the excess amounts so as to proceed with the claim.
- I went carefully through the quote/invoice with the landlord’s representative to ensure that the repairs to each area were for an amount over and above the excess and am satisfied that this is the case. I therefore order that the tenant reimburse the landlord for the five excess amounts (of $1,000.00 each) as ordered.
- I considered reducing the excess amount awarded for the contents because I am required to take into account betterment and depreciation. I do not have confirmation as to the age of the couch, bed, or table and the landlord has the benefit of these having been replaced as new. However the landlord not only had to replace these items but also find replace parts to repair damage to the heat pump (both outside and inside unit). Taking into account all of the damage to the contents/chattels and that the amount claimed by the landlord is the insurance excess and not the full amount, I do not consider that any discount for betterment or depreciation is required.
- I note that the bond was released to the landlord on 19 December 2023.
- Because Inspire Property Management Limited as agent for Joanne Wright has wholly succeeded with the claim I must reimburse the filing fee.