More than fair “wear and tear”

Tuesday 12 November 2019

Proving tenant liability for damage has long been a major worry for landlords but a recent Tenancy Tribunal ruling shows that it can be done.

By Miriam Bell

Holes in the wall, damaged carpets – they are the stuff that landlords dread to see in their rental properties.

Yet such damage is all too common and it can be difficult to establish that it constitutes more than fair “wear and tear”, rather than being accidental.

Tauranga landlords Paramjit Dhatt & Kamaljit Singh (represented by Kaimai Real Estate Ltd) were left with just such damage at the end of their tenant’s residence in their property.

Rachel Patira left 12 holes in the walls, a broken exterior panel, a missing bathroom ceiling panel, damaged carpet in the dining room, a broken light fitting, and broken door handles.

Rubbish had not been removed from the property, the keys were not returned and Patira was also in significant rent arrears.

The Singh’s went to the Tenancy Tribunal for rent arrears, compensation for the damage, and refund of the bond.

While Tribunal rulings on damage have, in the past, been controversial, on this occasion the Tribunal’s ruling was firmly in favour of the landlord.

Adjudicator A Macpherson said that, under the Residential Tenancies Act, a tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels, at the end of the tenancy.

“In this case, the tenant did not leave the premises reasonably clean and tidy; did not remove all rubbish; and did not return all keys,” Macpherson said. “Also, the landlord had to replace light bulbs and door stops.”

Due to the infamous Holler & Rouse vs Osaki case, landlords have to 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.

In the case, Macpherson ruled that the damage done to the property by Patira was more than fair wear and tear.

“The tenant has not disproved liability and I find that the evidence points to intentional damage. The amounts ordered are proved.”

Patira was ordered to pay a total of $6,194.89 (including rent arrears). However, the bond was refunded and put towards it, which meant payment of $4,359.89 was ordered.

Read more:

Tenants liable for careless damage - to a point 

New tenant damage, meth measures are only partial solutions 

Comments from our readers

On 12 November 2019 at 11:17 am Gutz said:
I had exactly the same situation as the tauranga situation last year And you would have sworn the adjudicator was the mother of the tenant The place was left with holes stained carpet rats under the bath (due to the filth) I was told to prove the holes were not accidental and that the damage to the doors wasnt wear and tear (one was kicked off the hinges) I was awarded the bond and about $1700 from an $6500 claim because The adjudicator wasnt satisfied that it was the tenants fault It certainly needs to change
On 17 November 2019 at 9:32 am BruceH said:
I have a not too dissimilar tenant situation. Being an ANZIIF Senior Associate of over 20 years with a Diploma in General Insurance & Insurance Branch manager experience of over 15 years, I'm very clear on how to interpreted what's intentional or accidental. The easiest way to do this is establish through the right questions & examination of the facts. If facts are not qualified then they can't be used. Whether damage was caused intentionally is not the best metric to establish proximate cause. However whether an Act was intentional, which subsequentally caused damage, and by the act itself the test of an average person would suggest that by the act the damage was likely to occur, then although it was not the intention to cause the damage, it was a reckless act. Therefore a claim of that nature should hold the tenant liable. Yet with clear & substantial evidence of tenants actions, including by their own admission was said to be inadequate. 21 Tenancy Agreement breaches by the tenant including installing a wood burner without advice to the Landlord (a req of the Act) or council consent. Adjudicator (BOP) - Not an unlawful Act as Council Inspector said it wasn't improperly installed on ref to an email. That's not what the email said, confirmed by the inspector. A lackbof council consent is not the unlawful act. Thhe lack of landlord consent is. A 90 day letter ruled as not legal. 1. I signed it. I have an agent who is landlord. But RTA states on behalf of owner. The Landlord is the grantor. Evidence I was the grantor due to tenants requests for tenancy being outside agents authority. Adjudicator - you're not a landlord. Wrong person signed. 2. Adjudicator - Retaliatory.I don't have a single one of those bones in my body. I was responding to tenants ongoing & blatant breaches and exercising my right by law. Suggest though 75 claims by tenant may suggest retaliation though. 3. Not 90 days - OK. agent didn't keep courier ticket. Get this. The tenant never claimed not 90 days. The adjudicator never asked the tenant when they received notice. Instead he calculated I'm assumption of likely day sent using NZ Post delivery target of 4 days + 1. The transcript shows the tenant never raised that claim. My tenant next door handed him to courier pack left on his doorstep. He knows the day but I won't pitch tenants against tenants. It was an overnight courier not email mail. I work at NZP. Oh his calculation in the order is exactly 90 days. Not less. Anyone else experience an adjudicator raising a claim against you & trying to reverse engineer facts without first seeking date of receipt by the tenant. So tenants still there. 90 days was up Oct 2018.I hope he's not cut more trees down or or attempted repairs without advise or authority causing further cost impact to house value.

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