Concerning Tobin, Jackie vs CHEN, JIANQING [2019] NZTT Auckland 4172141
The issue
Whether tenants are afforded the Osaki protection for damages caused by Airbnb sub-tenants?
The facts
– Mr Chen rented two apartments from Ms Tobin for a period of time until 21 October 2018.
– Mr Chen had never occupied either property and instead, on-leased both as Airbnb rentals with the knowledge and permission of Ms Tobin.
– Although Ms Tobin has both apartments insured, the policies do not cover any losses caused by Airbnb occupants.
– At the end of both tenancies, several chattels were discovered to be either damaged or missing. Both parties accept that the only party(ies) responsible
would have been Mr Chen’s Airbnb sub-tenants.
The laws
Statute: Residential Tenancies Act
Tenants are required to leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels
provided by the tenancy for their benefit (ss40(1)(e)(ii)-(v)). They are prohibited from intentionally or carelessly damaging or permitting any other
person from damaging the premises (s40(2)(a)). If there is damage (distinct from fair wear-and-tear), it is up to the tenant to prove that the damage
is not the result of a breach of s40(2)(a). That is to say, the tenant has the onus to prove that the damage is not intentionally or carelessly caused
by him or with his permission if he wishes to avoid liability (s40(4)). Tenants are liable for the actions of other people at the premises with their
permission (s41).
Case law: The Osaki protection
