Published tribunal order
Tenancy Tribunal case 4836181 — Rent arrears at 10A Cambridge Street, Putaruru, Putaruru 3411
Decided 30 May 2024 · Published 30 May 2024 · Application 4836181
Mixed / unclear
- Rent arrears
Order
- The Tenancy of Ian Mitchell at 10A Cambridge Street, Putaruru, Putaruru 3411 is terminated, and possession is granted to Eves Realty Limited immediately.
- Ian Mitchell is to pay Eves Realty Limited $5,696.15 immediately, calculated as follows: DescriptionAmount Rent arrears2,675.71 Carpet replacement1,500.00 Repainting the interior1,500.00 Reimbursement of filing fee$20.44 Total$5,696.15
Reasons
- The Landlord attended the hearing. The Tenant has been hospitalised and has dementia. The Tenant’s sister and doctor were called and confirmed the Tenant would not remember the condition of the property when he was hospitalised and would likely be alarmed and unsettled by the proceedings and opposed to them, tending to view his health, wellbeing and safety while living alone in his home more optimistically than outside observers would.
- The landlord has applied for termination of the tenancy for breach of the Tenant’s obligations, compensation and rent arrears.
Should the tenancy be terminated?
- The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
- Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
- The tenant, Ian Mitchell, is alleged to have breached the requirement to keep the premises reasonably clean and tidy. Specifically, the notice outlines the following issues: a. The bathroom needs to be entirely cleaned, including walls, floors, vanity, toilet, and shower. Additionally, the shower curtain needs to be replaced. b. The kitchen requires cleaning, encompassing all surfaces, walls, floors, and the oven. c. The lounge room needs cleaning, covering all surfaces, floors, walls, windowsills, and curtains. d. There are too many items in the bedrooms and lounge rooms, which are blocking adequate ventilation. These items need to be removed and cleared. e. Windowsills throughout the property need to be cleaned. f. The walls and floors throughout the property need cleaning. g. Doors need to be cleaned, and any marks removed. h. Ceilings throughout the property also need to be cleaned.
- These points indicate the areas where the tenant has allegedly failed to maintain cleanliness and tidiness as required under the Residential Tenancies Act.
- The landlord served a 14-day notice on the tenant on 1 February 2024 and the tenant did not remedy the breach within the required period.
- It would be inequitable to refuse to terminate the tenancy because the condition of the home has deteriorated considerably since the commencement of the tenancy and continues to deteriorate.
- 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 landlord provided rent records and water rates invoices which prove the amount owing as at 26 May 2024: $2,675.71
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.
- The following damage was caused during the tenancy: a. The carpet and carpet underlay has been soiled by urine and human faeces. The Property Manager’s evidence in the form of her own observations and supporting inspection photographs, lend support to the Landlord’s claim for replacement costs. Replacement of the carpet is required for cleanliness and health and safety reasons. b. The walls inside the home have been damaged by mould growth due to inadequate ventilation by the Tenant, who reportedly always left the home locked up and never opened windows. The mould has grown beneath the wallpaper. The issue is widespread.
- The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- The amounts ordered are proved.
- 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 Landlord has not given the age of the carpet prior to the tenancy, and I have limited information to assess its condition. The carpet in the two bedrooms and dining area were worst affected and this is where carpet has been replaced. I consider, looking at the photographs, the carpet was not new at the commencement of the tenancy and would be about four years old. Carpet has a realisable (depreciable) life of about eight (8) years according to IRD. I therefore grant $1,500.00 for the carpet replacement using straight line depreciation.
- Using the same methodology I consider the wallpaper was done some years ago and the Landlord could have reasonably expected to carry out redecorating in the next 3-5 years. I award $1,500.00 for repainting the interior of the premises.
- Because Eves Realty Limited Bree Tresidder has substantially succeeded with the claim I have reimbursed the filing fee.