Published tribunal order
Tenancy Tribunal case 5020268 — Property damage at 7 Ballinabreen Road, Flat Bush, Auckland 2019
Decided 27 Feb 2025 · Published 27 Feb 2025 · Application 5020268
Landlord favoured
- Property damage
- Cleanliness
Order
Phu Lieu Huynh, Khanh dung Ma, Van thu Ho, Trung De Do and Ngoc Thanh Ha Tran must pay Tbt Property Management Limited Acting Agent For Richard Song $90,392.40 immediately, calculated as shown in table below.
Reasons
- Only the landlord attended the hearing.
- The landlord has applied for compensation and reimbursement of the filing fee following the end of the tenancy.
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.
- The tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish.
- The tenant did not return the garage remotes and keys.
- The amounts ordered are 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.
- 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 tenant had used the premises for an unlawful purpose; cultivation of cannabis had been carried out at the premises on a large and commercial scale.
- The following damage was intentionally caused during the tenancy: walls, bathroom tub, window frames, ceiling, door frames, insulation, carpet, electrical wiring, heating and cooling systems, ducting, and flooring. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- Only a portion of the damage is covered by the landlord’s insurance; the tenant's liability has been limited to the lesser of the insurance excess as set out in table above.
- The amounts ordered are proved.