Late last year I wrote an article about the Court of Appeal decision in Holler v Osaki (Osaki). The ongoing application of this decision by the Tenancy Tribunal (Tribunal) had become rather controversial as the decision had not clarified what “intentional damage” meant.
The ‘Foxton’ case
Consequently, a Foxton landlord struggled with the application of this decision in the Tenancy Tribunal, as his tenant intentionally breached the “no dogs” clause in her tenancy agreement, and the dogs caused damage to the property.
The Tribunal applied Osaki and because the tenant had not intended the damage and the Landlord had insurance, he was responsible for payment.
‘Intentional damage’ clarified
The Landlord appealed to the District Court, and Judge Smith saw the damage in a different light to the Tribunal, noting:
“Conduct will be intentional when it is deliberate, and not accidental, and [resulting damage] will be intentional if the defendant meant to cause it or (probably) knew it was going to result”
Judge Smith also noted that by not only breaching the tenancy by having dogs in the property, but then allowing the dogs inside after more than a couple of accidents, the tenant ought to have known that damage was going to result. The Osaki decision does not protect tenants where the damage was intentional.
Accidental damage - Landlord still pays
It is important to point out that this decision does not repeal the Osaki Decision. Accidental damage, such as a hole in the wall after a fall (or a party) will still require the Landlord to pay, however the Foxton landlord’s case provides that a breach of the tenancy may assist in recovery of damage as it will allow a stronger case for the landlord to show that the damage was intentional.