- Dog that shouldn't have been at the property destroys carpets
- Intentional breach by tenant goes unpunished
In what is probably the most significant case since the Court of Appeal’s ruling from the Osaki case, a tenant has walked away immune from any damages caused by a pet dog, even though the dog should not even have been at the property as the tenant breached her Tenancy Agreement.
On Tuesday the 23rd of August in Palmerston North, Adjudicator Clancy Lyon, a lady I know and respect as an adjudicator, made a ruling that shocked landlords and property managers alike.
The case in question was between David and Cecilla Russ of Tekoa Trust and Amanda Stewart. The latter was a tenant of a house she rented in Foxton. The background of the case was the landlord was seeking damages, cleaning and rent arrears whilst the tenant made a cross-application against the landlord for failing to maintain the property.
Tekoa Trust claimed that the tenant should be liable for replacement of the carpet at the property after they had to be removed due to damage caused by dog continually urinating on it. The carpets were so badly damaged by the dog the only option was to replace the carpet as the smell was so bad.
In the Order of the Tribunal, Ms. Lyon acknowledges that the tenant clearly breaches the Tenancy Agreement by allowing a pet dog to stay at the property. However, Ms. Lyon goes on to state in the Order of the Tribunal that even though she accepts that the tenant has intentionally breached the agreement the landlord did not establish that the tenant intended to damage the carpet.
She then goes on to award damages of $50 against the tenant for three holes punched in a door along with some cleaning costs and arrears.
In what must have felt like a slap in the face to David and Cecilla Russ, the tenant didn’t even bother to turn up, even though Ms. Stewart had made a cross-application against the landlord.
In my time as a Property Manager and a Department Manager, I have faced Ms. Lyon on numerous occasions in Tenancy Tribunal. In all my dealings with Ms. Lyon, I believe she is one of the better adjudicators who was thorough, professional and totally unbiased in her rulings. Did she simply get this wrong or was she following guidelines laid out for her following the Osaki ruling?
My opinion is that this decision is deeply disturbing. A tenant can willfully and intentionally breach a Tenancy Agreement and then not be held liable even though the consequences of those actions led to significant damages. It sends the wrong message to society. Much like a rich-listers son who can assault a female police office and avoid jail, or a rugby player who can attack someone though face no sentence due to the impact it could have on his career.
A potential victim from this case is pet loving tenants. Landlords will simply become more reluctant to rent to tenants with pets as the risk of damage to property makes the proposition of renting to pet lovers not worth it.
Tekoa Trust has appealed the decision and is set for a date with the District Court in December. Many people will be awaiting the decision of the District Court. We can only hope for a Christmas miracle that common sense wins and the original decision is overturned.
However, do not be surprised if it isn’t. Common sense is something that appears to be greatly lacking in the courts around New Zealand at the moment and unfortunately, Tenancy Tribunal is leading the way.