Published tribunal order
Tenancy Tribunal case 5120923 — Rent arrears at 51 Hepburn Road, Glendene, Auckland 0602
Decided 16 Apr 2025 · Published 16 Apr 2025 · Application 5120923
Mixed / unclear
- Rent arrears
Order
- This order is reissued on 16 April 2025 to clarify that the landlord’s application seeking compensation for damage is withdrawn without prejudice to any future claim. This order replaces the order issued on 8 April 2025.
- Jasmine Folau must pay Mostafa Basiri $777.00 immediately calculated as shown in the table below:
Reasons
- The landlord attended the hearing. The tenant did not attend.
- Following the fixed-term tenancy coming to an agreed early end, the landlord has applied for rent arrears, compensation for damage, and reimbursement of the filing fee.
How much is owed for rent?
- The tenancy was a fixed-term tenancy commencing 17 March 2024 and ending 16 March 2025.
- The landlord says that in December 2024, the tenant approached the landlord and requested the fixed-term tenancy come to an early end at the end of the January 2025.
- The landlord says they agreed the fixed-term tenancy could come to an end on 31 January 2025.
- The tenant last paid rent on 10 December 2024.
- The tenant moved out on 17 January 2025.
- The landlord seeks rent arrears from 17 December 2024 to 22 January 2025, being a total of $5,500.00.
- The landlord says he is holding a bond of $4,750.00 which the tenant paid him at the start of the tenancy. The bond was not lodged with the Bond Centre.
- The landlord has applied that bond to the rent arrears owing, and seeks an order for the outstanding amount, being $750.00.
- The landlord provided rent records which prove the amount owing at the end of the tenancy. I make an order accordingly.
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 of the Residential Tenancies Act 1986 (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.
- The landlord seeks compensation for damage to windows, a sliding door, carpet, walls and a burned benchtop in the kitchen. The landlord has not filed an entry report showing the condition of those items at the start of the tenancy, or an exit report showing their condition at the end of the tenancy. The landlord has not filed evidence in support of the amounts claimed as costs incurred. The landlord has not filed evidence as to whether an insurance claim has been made, and if so, whether it has been accepted.
- The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.
- The applicant has not filed sufficient evidence in support of the claim for damages. The applicant has indicated he has the evidence necessary to support the claims and may file a future application.
- I have not considered the merits of the landlord’s claim(s) for compensation for damage.
- The landlord’s claim for compensation for damage is withdrawn without prejudice to any future application that may be made. Should the tenant reimburse the landlord’s application fee?
- As the landlord has substantially succeeded with their application (the claim for rent arrears being the largest of the two claims before applying the bond) the tenant must reimburse the filing fee.