Published tribunal order
Tenancy Tribunal case 4822397 — Rent arrears at Unit/Flat B, 38 Kells Avenue, Aramoho, Whanganui 4500
Decided 29 May 2024 · Published 29 May 2024 · Application 4822397
Dismissed
- Rent arrears
- Property damage
Order
- Aimee-Lee Emery and James McDonald are to pay Inspire Property Management Limited As Agent For Stuart Graeme Belk And Deborah Renee Martin $1,628.24 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,920 (6416052-014) to Inspire Property Management Limited As Agent For Stuart Graeme Belk And Deborah Renee Martin immediately.
Reasons
- The landlord attended the hearing. The tenant, Ms Emery, attended by phone but there was no appearance for Mr McDonald.
- The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
How much is owed for rent?
- The tenancy ended on 11 November 2023.The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy was $1,597.14, which was not disputed by the tenant. The amount ordered is proved.
Is the tenant responsible for the damage to the premises?
- The landlord sought compensation in relation to damaged doors and blinds and carpet.
- The tenant did not dispute the state of the property at the end of the tenancy but said that when she moved in the blinds were already broken and the bedroom door was missing. However, she conceded that when she had moved in, Mr McDonald had been living there for two weeks.
- The landlord filed photos of the tenancy at the end of the tenancy, but none from the start. These were later provided.
- 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. This applies to each incident of damage. Where the damage is in several rooms, insurers routinely treat each room as an incident. That means that the landlord has to pay an excess for each room.
- 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. Door
- The landlord submitted an invoice for replacement of a bedroom door and a wardrobe door totalling $670.44. This was not disputed by the tenant. Venetian blinds
- The venetian blinds were bent out of shape, the control rod on one no longer worked, and one was on the floor because of a broken bracket. The replacement cost of the blinds was only $27.55 each, making a total of $110.22. The tenant said that the existing blinds were flimsy. This raises the question of whether the damage amounts to fair wear and tear. That would have been a stronger argument if the rest of the premises had been left in good condition. Bearing in mind the missing wardrobe door, broken lampshade, burn marks on the carpet and kitchen floors, I find it more likely that the damage was caused by the actions of the tenants.
- The amounts ordered are proved. Carpets
- There are two claims for carpet. One relates to the lounge. The tenants have attempted to patch a hole using a square of carpet cut out of the carpet in the bedroom wardrobe. The insurance assessors have offered to settle the insurance claim at $3,700 less the excess for $1,150.
- The landlord provided a quote for replacement of the carpet in the bedroom wardrobe for $990. That is not being claimed on insurance because the cost is less than the excess.
- I have taken 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, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
- The carpet was not new at the start of the tenancy. The property manager was unsure of the age. Entry inspection photos were sought and provided after the hearing. They show that the carpet was in reasonable, but not excellent condition, with clear wear and tear at the joins of the carpet. I am not satisfied that the carpet in the bedroom required replacement as a result of damage to the carpet in the wardrobe. A patch or replacement mat would have been adequate. That claim is dismissed.
- As for the lounge, the damage/repair is noticeable, and replacement was reasonable. The excess of $1,150 is similar to the depreciated value of a carpet after 4 years and is a reasonable amount for the tenant to pay. That amount is ordered.
- Because Inspire Property Management Limited As Agent For Stuart Graeme Belk And Deborah Renee Martin has substantially succeeded with the claim I have reimbursed the filing fee.