> back to overview

Article for the Magazine for March 2007
Rent for Renovation.

Can you claim rent against the tenant for the period while the property is undergoing repairs, the repairs being wholly exclusively and necessarily incurred because of the tenants conduct? Most landlords would think that such a claim was doomed to failure because it has generally been thought of as “an overhead expense” and reasonably foreseeable as such by landlords at the time they contemplate becoming a landlord.

A case in 2003 clarified the position. The facts in Mills V. Paia were that the landlord claimed for $720 being rent lost for the period of four weeks while certain work was done to renovate and repair the premises after the tenant had left. The Tribunal looked at the facts and found that most of the work would have been completed by the landlord anyway as repairs and renovation in the ordinary course of events related to fair wear and tear.However the Tribunal did decide to award one weeks rent of $180 as rent compensation for the period that the landlord need to occupy the premises for the purpose of repairs and renovation that was fairly attributable to the tenants neglect over and above fair wear and tear. This principle would be more likely to apply where the tenancy has only been in existence for a shorter period rather than a longer period. The longer the tenancy period the harder it will be to persuade the Tribunal that the repairs were attributable to the tenant’s conduct as compared to that which would have occurred by reasons of fair wear and tear in any event.

In any case, the landlord will have to show that that he or she acted reasonably in the circumstances, and sought to mitigate loss appropriately. Notwithstanding the limitations, it does provide an example of landlords being able to successfully claim for rent after the tenancy has ended and after the tenant has gone and in the circumstances outlined above

This seems like an eminently sensible decision. It is not a binding authority as Tribunal decisions are not binding, but it does speak to common sense.

Scotney Williams L.L.B.
Principal
Tenancy Practice Service.