Tenant Ordered to Pay for Repairs and Cleaning After Fire Damage

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[2025] NZTT 5172433

TENANCY TRIBUNAL AT

APPLICANTS: [redacted]

Landlords

RESPONDENTS: [redacted]

Tenants

TENANCY ADDRESS: [Street address suppressed], Kelston, Auckland 0602

ORDER

1. The landlords’ names and identifying details including the tenancy address must not be published.

2. The [COMPANY] is to pay the bond of $2,800.00 ([Bond number suppressed]) to [the landlords] immediately.

3. [NAME] and [NAME] must pay [the landlords] $3,120.30 immediately, calculated as shown in table below.

Description Landlord Repairs $5,433.30 Cleaning and rubbish removal $460.00 Filing fee reimbursement $27.00 Total award $5,920.30 Bond to the landlords $2,800.00 Total tenants must pay the landlords $3,120.30

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Reasons:

1. One of the landlords attended. She said she was attending for the other landlord.

2. [NAME] attended. She said that she was attending for [NAME] Te [NAME].

3. The landlords named [NAME] named as tenant, but he is a minor. He does not have capacity to contract. The Tribunal removes him as a party.

4. The landlord has applied for compensation and reimbursement of the filing fee following the end of the tenancy.

Are the tenants liable for the cost of cleaning and rubbish removal?

5. Section 40(1)(e)(iii) of the Residential Tenancies Act 1986 requires tenants to leave the premises reasonably clean and to remove their rubbish once the tenancy ends.

6. The tenants did not leave the premises reasonably clean and tidy and did not remove all their rubbish.

7. The landlords employed a contractor to clean the premises at remove the rubbish, which cost them $460.00.

8. I find liability and quantum proven.

9. The Tribunal orders the sum sought.

Is the tenant responsible for the damage to the premises?

10. The landlords claim for the cost of replacing two windows and weatherboards that damaged by a rubbish fire.

11. To succeed in a damage claim, landlords must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If they establish that, to avoid liability, the tenant must prove they or their guests did not carelessly or intentionally cause or permit the damage.1

12. Where a tenant causes the damage carelessly, and the insurance covers the landlord’s loss, the tenant's liability is limited to the lesser of the insurance

1 Residential Tenancies Act 1986 (RTA), ss 40(2)(a), 41, and 49B.

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excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent).2

13. Where the tenant causes the damage carelessly and the damage is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent).3 Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage.4

14. 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.5

15. 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.6

16. The damage occurred during the tenancy and is more than fair wear and tear.

17. The landlord says the fire occurred only a few hours after she emailed the tenants to remove a pile of rubbish that had piled up next to the house. She submits it is appropriate to draw an inference that it is likely that [NAME] lit the fire.

18. [NAME] denies responsibility for the fire but could not offer a plausible alternative explanation for what may have caused the fire. She submitted that it is a rough area with gang members living in the community. The inference she suggests the Tribunal should draw is that some unknown bad actor lit the fire.

19. The fire occurred at about 4:00pm in daylight. Contractors working nearby saw the fire and a person belonging to the tenancy address nearby at the time of the fire. Arson is a serious crime that typically results in imprisonment in the event of conviction. It is improbable that an unknown person without any motive would set fire to the rubbish pile. It is more likely that [NAME] or another occupier lit the fire in response to the landlords’ request to get rid of the rubbish.

20. I am satisfied on the balance of probabilities that [NAME] and/or one or more of their guests lit the pile of rubbish next to the house. In lighting the fire, that person knew that the house would inevitably be damaged.

2 RTA, s 49B(3)(a). 3 RTA, s 49B(3)(b). 4 RTA, s 49B(3A)(a). 5 RTA, s 49B(1). 6 See Guo v Korck [2019] NZHC 1541.

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21. Therefore, I find on the balance of probabilities that the lighter of the fire caused the damage intentionally. Because the firelighter was a tenant or an authorised guest, the tenants are liable for the cost of repair.

22. The landlord says she enquired with her insurer whether it would cover the damage. She told the insurer that [NAME] lit the fire. The insurer advised it would not cover the event because the tenant lit the fire deliberately.

23. The landlords’ contractor charged them $6,037.00 to repair the damage.

24. The Tribunal should return the landlord to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. Therefore, it is necessary to account for betterment and depreciation.

25. The original windows were only four or five years old. The weatherboards were in a good condition prior to the fire but had gone unpainted for an indefinite number of years. I consider I should apply depreciation at the rate of 10 percent having regard to the age and condition of the windows and weatherboards at the start of the tenancy and their probable useful lifespan.

26. The Tribunal orders the tenants to pay $5,433.30 for the cost of repairing the damage.

Bond

27. The bond is still with the [COMPANY].

28. The Tribunal will direct the [COMPANY] to pay the bond to the landlords in part- payment of the tenants’ debt.

Filing fee

29. The tenants must reimburse the landlords for the filing fee.

Non-publication

30. The landlords request an order for non-publication of their names and identifying details.

31. The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

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32. The landlords have wholly succeeded in the proceedings. I do not consider that publication is in the public interest or is justified because of the landlords’ conduct or any other circumstances of the case.

33. The landlords’ request for non-publication is allowed.

[NAME] 09 April 2025

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Reasons:

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