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Tribunal rules for landlord in damage case

Damage done to a Porirua rental property by a dozen dogs was intentional and that means the tenants have to pay, the Tenancy Tribunal has found.

Thursday, January 24th 2019, 11:39AM 2 Comments

by Miriam Bell

The two tenants, Memorie Joe and Denise Akavi, have been ordered to pay Why Worry Property Limited $18,859.83 after their dogs caused their rental property to become a health risk.

Their tenancy began in mid-2015 and was uneventful until 2018 when it emerged the two were keeping up to 12 dogs on the premises.

The landlord was alerted to the situation but the tenants didn’t do anything to remedy the situation so the landlord terminated the tenancy.

In September 2018, the Tribunal granted the landlord possession of the property but legal enforcement was needed to remove the tenants.

By the time of the eviction the premises had become a health risk as every room had dog faeces on the floor and the floor boards were soaked in urine.

The tenants had also removed the carpets and a considerable amount of rubbish had been left behind for the landlord to remove.

At this stage, the Porirua City Council, the NZ Police and SPCA had all become involved.

In his decision, Tribunal adjudicator Brent Smallbone says the whole property was so contaminated that it was hard to find someone to clean it. 

“The damage done to the premises by the dogs and by the tenants was extensive. The extent of the work required to rectify the damage meant that the landlord was unable to rent the property for more than four weeks.

Damage is intentional where a person does something, or allows a situation to continue, knowing that damage is a virtual certainty, Smallbone says.

“Having considered the evidence I am satisfied that the damage was intentional in that the actions of the tenants made damage a virtual certainty. The damage is more than fair wear and tear, and the tenants have not disproved liability for the damage.”

The landlord applied for compensation for the damage, costs of repair, as well as rent arrears for the loss of rent. 

Smallbone said the landlord had proved their claim for compensation and should be paid $18,859.83 by the tenants.

“The landlord should be returned to the position they would have been in had the tenants not breached their obligations, and should not be better or worse off.”

This decision is a rare strike in favour of landlords in the fraught area of tenant liability for damage to rental properties.

The issue has been a controversial one since the Court of Appeal handed down its ruling on tenant damage in the Holler & Rouse vs Osaki case back in 2016.

A series of subsequent decisions have left landlords calling for a change to the law. The government says the issue is being addressed in the Residential Tenancies Amendment Bill (No. 2) which is currently making its way through Parliament.

Read more:

No tenant liability under new rules 

Reckless damage by tenants not intentional 

Tenant damage liability changes unfair 

Tags: damage liability property investment property management tenancy reform Tenancy Tribunal tenants

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Comments from our readers

On 24 January 2019 at 1:28 pm Sooky1 said:
Rulings are one thing, getting your hands on a single solitary cent of that awarding is a totally different mater, I'll betcha my last cent the Landlord will not see a single cent of that awarded money.
On 25 January 2019 at 6:25 pm Peter L said:
I agree.
Followup to ensure that rulings are enforced seldom occurs.

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AIA 4.55 2.25 2.59 2.89
ANZ 4.44 2.85 3.19 3.49
ANZ Special - 2.25 2.59 2.89
ASB Bank 4.45 2.25 2.59 2.89
Basecorp Finance 5.49 - - -
Bluestone 3.49 3.34 2.99 3.34
BNZ - Classic - ▼2.25 ▼2.55 2.79
BNZ - Mortgage One 5.15 - - -
BNZ - Rapid Repay 4.60 - - -
BNZ - Std, FlyBuys 4.55 ▼2.85 ▼3.15 3.39
BNZ - TotalMoney 4.55 - - -
Lender Flt 1yr 2yr 3yr
CFML Loans 4.95 - - -
China Construction Bank 4.49 4.70 4.80 4.95
China Construction Bank Special - 2.65 2.65 2.80
Credit Union Auckland 5.45 - - -
Credit Union Baywide 5.65 3.95 3.85 -
Credit Union South 5.65 3.95 3.85 -
First Credit Union Special 5.85 2.95 3.45 -
Heartland Bank - Online 2.50 1.99 2.35 2.45
Heretaunga Building Society 4.99 3.40 3.50 -
HSBC Premier 4.49 2.25 2.35 2.65
HSBC Premier LVR > 80% - - - -
Lender Flt 1yr 2yr 3yr
HSBC Special - 2.25 - -
ICBC 3.69 2.25 2.35 2.65
Kainga Ora 4.43 2.67 2.97 3.13
Kainga Ora - First Home Buyer Special - 2.25 - -
Kiwibank 3.40 3.20 ▼3.40 ▲3.64
Kiwibank - Offset 3.40 - - -
Kiwibank Special 3.40 2.35 ▼2.55 ▲2.79
Liberty 5.69 - - -
Nelson Building Society 4.95 3.20 3.24 -
Pepper Essential 4.79 - - -
Resimac 3.39 3.35 2.99 3.35
Lender Flt 1yr 2yr 3yr
SBS Bank 4.54 2.79 2.99 3.29
SBS Bank Special - 2.29 2.49 2.79
Select Home Loans 3.49 3.34 2.99 3.34
The Co-operative Bank - First Home Special - 2.09 - -
The Co-operative Bank - Owner Occ 4.40 ▼2.25 2.59 2.79
The Co-operative Bank - Standard 4.40 ▼2.75 3.09 3.29
TSB Bank 5.34 3.05 3.29 ▲3.59
TSB Special 4.54 2.25 2.49 ▲2.79
Wairarapa Building Society 4.99 3.55 3.49 -
Westpac 4.59 ▼2.85 3.19 3.49
Westpac - Offset 4.59 - - -
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Westpac Special - ▼2.25 2.59 2.89
Median 4.55 2.71 2.99 2.89

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