Guilty unless proven innocent: tenant to compensate landlords

The judges of the Court of Second Instance (TSI) have amended a ruling from the Court of First Instance (TJB) regarding the payment of compensation by a tenant to his landlords because of fire damage caused to the housing unit.

In the first instance, the TJB had decided the tenant did not have to pay compensation to the apartment owners as it had not been proven that the fire was caused by the tenant’s misconduct.

Dissatisfied with the decision, the four owners appealed to the TSI. Upon review, the TSI ordered the tenant to pay compensation of MOP82,497.71 to the landlords. Interest at a predetermined rate was added to the compensation amount from the date of the delivery of the decision.

The judges of the TSI said, “Under the provisions of Articles 1025 and 1026 of the Civil Code, in the event of loss or deterioration of the thing [the apartment], it is presumed that the tenant is at fault and assumes the responsibility of compensate [the owner] unless he can prove that the loss or deterioration is due to normal use or not attributable to him.”

As such, the judges of TSI considered that it was the tenant who bore the burden of proving that the fire could not be attributed to him to avoid the obligation to pay compensation to the landlords, rather than the opposite, as the TJB previously ruled.

The compensation calculated by the TSI took into account the cost of repairing the damage caused by the fire (MOP544,343) as well as the loss of monthly rent from the apartment for an eight-month period during which the repairs were conducted (equivalent to MOP64,890). The total compensation amount excludes any amount of compensation received by the owners from their insurance company, being the equivalent of MOP505,105.29.

The same court denied a second request for compensation from the owners, who made a claim for an additional MOP1 million from the tenant in respect of emotional harm that they claimed based on “profound shock, trauma, deep suffering and deep sadness, despair, constant stress, insomnia, constant irritation and anxiety.”

The TSI said that compensation for non-pecuniary damage arises from serious damage which was not proven on the facts presented.