Published tribunal order
Tenancy Tribunal case 4940715 — Leaks at 55 Hilton Drive, Amberley, Amberley 7410
Decided 17 Sept 2024 · Published 17 Sept 2024 · Application 4940715
Landlord favoured
- Leaks
Order
- Kirandeep Brar and Guneet Brar to pay Metro Property Management Limited T/A Ray White As Agent For Mama Mia Limited $1,227.00, calculated as shown in table below.
- The Bond Centre is to pay the bond of $2,600.00 (6501228-005) to Metro Property Management Limited T/A Ray White As Agent For Mama Mia Limited immediately.
Reasons
- Both parties attended the hearing. The landlord was represented by Ms Kinley and Ms Golding. Mr Brar represented the tenants. Time was allowed post hearing for both parties to submit further evidence.
- The landlord initially sought compensation for the tenants’ alleged failure to notify them of a leak however since the claim was filed, the tenancy has ended. The landlord therefore also claims for compensation relating to the end of the tenancy.
- I discuss each claim separately below however note that the landlord as applicant has the burden to prove their claims. The standard to which their claims must be established is the balance of probabilities, or what is more likely than not.
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. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986(RTA). The landlord says the property was unclean and the carpets were stained. They seek reimbursement for the costs in attending to that.
- The tenant's statutory obligation is to leave the premises reasonably clean and reasonably tidy. This is not an absolute standard, and it does not mean that the premises will necessarily be ready for occupation by a new tenant straight away. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord. The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined on the basis of the subjective opinion of either the landlord or the tenant.
- The landlord claims $1,006.25 for having the carpet cleaned. They say the carpet was considerably stained and required extensive cleaning. The invoice provided states the following: Several stains throughout the property. Please note - the red/orange staining in bedroom was unable to be removed despite several attempts. Yellow staining in study was reduced and a reducing agent was applied to any remaining stains. Melted carpet from a burn in the room with black paint. All other black marks were removed.
- Mr Brar agrees there were stains, and he should be liable for cleaning however disputes the amount claimed which he says is excessive.
- The landlord also claims compensation of $699.98 for having to clean the property when the tenants vacated. Mr Brar agrees it needed a clean but says he was denied the opportunity to further clean it himself which he specifically asked for.
- This property was a new build therefore this tenancy, which lasted a year, was the first in the property. It is relatively large with three bedrooms and two living areas. 665 pages of exit inspection photos were provided; considerable attention to detail was applied by the property manager.
- Whilst it is best practice for a landlord to allow a tenant to remedy any deficiencies they have left in the property after the tenancy terminates, they are not legally required to. This is because section 40(1)(e)(iii) RTA requires tenants to leave the property reasonably clean and tidy upon the termination of the tenancy, i.e. when they leave.
- Given the tenants did not do so here, the landlord was entitled to bring in their own cleaners. Having assessed the photos against the invoices, I am satisfied that the property was not left clean and tidy, however only just. There was only a small amount of cleaning that was further required. I find that the cleaning undertaken by the landlord took the property to a state in excess of that statutorily required of tenants, therefore I have reduced that claim to account for that.
- The carpet cleaning cost I also consider was excessive. Fair wear and tear must be considered. It is manifest that when a landlord rents premises to a tenant, that the tenants will live in the dwelling, and in the process cause some wear and tear. A landlord cannot expect a property to be returned to them after a tenancy in pristine condition. Accordingly, I have reduced the amount claimed to account for fair wear and tear.
Is the tenant responsible for the damage to the premises?
- The landlord claims compensation for the following damage: a. Leak damage. b. Dents and scuffs in the walls, $390. The tenants consent to this claim however I have reduced it to account for fair wear and tear as discussed above. As far as walls are concerned, it is to be expected there will be some minor damage such as scrapes and marks incurred over a tenancy, relative to the duration of the tenancy. That is an incident of people living in the premises, and that damage (wear and tear) is ‘compensated’ by way of the rent payments the landlord receives. c. Damaged cooktop. The $1,000 insurance excess for the repair of this damage is sought. This order is consented to by the tenants.
- To be successful in a claim for compensation for 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 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.
Is the tenant liable for leak damage?
- On the 31 st of May the property manager attended the home and was shown the leak in the garage. A plumber was contacted and attended the property the following day however could not access what appeared to be the origin of the leak as the tenants’ belongings were in front of the site and they did not want them moved.
- The tenants later moved the belongings and three days later the plumber returned and stopped the leak.
- The landlord made a claim through their insurance company however they would only pay the claim in part given they say the tenants failed to advise of the leak. The total costs the landlord has incurred for this damage is $5,278.91, the insurance company paid $2,000 (less the excess, therefore only $1,00- effectively), therefore the landlord paid $4,278.91 to right the damage.
- The property manager Ms Street says that when she attended on the 31 st , the tenant’s boarder was there and when asked how long the leak had been in the garage he said, “maybe like 10 days". He then changed his mind when challenged and said maybe “5 or 7 days”. She says she then saw the study and observed that the carpet was saturated and there were footprints going through the wet carpet. In her view the carpet had been like that for some time.
- The photos from the plumber show mould in the internal cavity of the wall which Ms Kinley submits indicates that the leak had been present for some time.
- The landlord provided a letter from Pure Services a flood restoration company stating the following: our report shows very high moisture readings, anything below 16 indicates no moisture so where the readings were at 99 it means there has been a big build up of water. the photos showing the dark mould means that the mould has again been growing for some time to get to that stage. Further when you blow the photos up the timber is not its normal pink colour and is wet through the bottom plate, again indicating the moisture/leak had been happening over a reasonable period of time.
- Mr Brar says he had seen a little bit of water in the garage but thought it was only condensation from winter. He says he did not notice the water in the study as he does not go in there often. He says he was going to call the landlord about the water he saw that day. He also submits that the majority of the water ingress came in between the 1 st and 4 th of June, when the plumber returned.
- It is not disputed that the tenants did not cause the leak. Therefore, in the ordinary circumstances they would not be liable for the damage it caused. However here Ms Kinley submits that the tenants breached their obligation pursuant to section 40(1)(d) of the RTA to notify the landlord as soon as possible after discovery of any damage to the premise or need for repair.
- Having weighed the evidence carefully, I am satisfied that the tenants and/or their occupant were aware of the water ingress. The footprints in the evidently saturated carpet in the study assists me in that finding. Given the study appeared to be used as shoe storage I am satisfied they were using that room fairly regularly.
- The water in the garage was also clearly in excess of condensation. It has wet some of the tenants’ belongings and has pooled. It is not clear why they would not move their belongings at the plumbers first visit in an effort to help address the matter, but this has increased the damage due to the further passage of time.
- This was a relatively slow leak from the fridge water line. It did not occur over the three days the tenants submit it did, but most likely took some time to cause the extensive damage it did.
- The tenants have therefore breached the RTA in failing to notify the landlord of the leak. This has caused the landlord considerable loss given their failure affected the insurance cover, which I consider should be compensated for. It was foreseeable that failing to notify of a leak could increase the amount of damage that leak would do. Leaks are serious matters and need to be attended to urgently when found.
- I do not find the tenants responsible for the entire cost the landlord was put to as they would have been put to this regardless given the leak occurred. Accordingly, I consider an award of $2,000 just 1 in the circumstances. Filing fee
- Because Metro Property Management Limited T/A Ray White As Agent For Mama Mia Limited has substantially succeeded with the claim I have reimbursed the filing fee.