What was Tenancy Tribunal case 4392520 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4392520?

Compensation: $1,500.00 awarded to tenant; Property Damage: $500.00 awarded to landlord; Rent Arrears: $378.57 awarded to landlord; Rubbish Removal: $250.00 awarded to landlord

What type of tenancy dispute was case 4392520?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4392520?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9234120-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4392520 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4392520?

Compensation: $1,500.00 awarded to tenant; Property Damage: $500.00 awarded to landlord; Rent Arrears: $378.57 awarded to landlord; Rubbish Removal: $250.00 awarded to landlord

What type of tenancy dispute was case 4392520?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4392520?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9234120-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4392520 — Property damage

Tenantcheck Insights

Reasons

Procedural history of this matter.

Claims and awards in Tenancy Tribunal application 4392520 — net $371.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$378.57		Rent arrears
Rubbish removal	$250.00		Rubbish removal
Repairs	$500.00		Repairs
Compensation		$1,500.00	Compensation
Total award	$1,128.57	$1,500.00
Net award		$371.43
Total payable by Landlord to Tenant		$371.43

This matter was first listed for hearing on 24 April 2023 and was dismissed for non-appearance on the part of the tenant on that date.

The tenant had been granted leave to appear at the hearing by telephone conference but failed to pick up three calls placed to him.

[The tenant/s]then applied for a rehearing, submitting that he had sought an adjournment from the Tribunal just prior to the hearing, which had not been seen because his request to adjourn had not come through to the adjudicator before the hearing. The application for a rehearing was therefore granted on the papers.

Notice of the new hearing date, 28 July 2023, was sent to the parties on 22 May 2023. [The tenant/s] had two months to prepare for the hearing.

[The tenant/s] requested that the hearing be conducted by video and this was granted.

He then sought an adjournment on the basis that he had a “medical appointment.” It transpired that that medical appointment was a specsavers appointment. He also advanced other grounds, including the fact that he wanted the Tribunal to post him a hard copy of the documents he filed when he submitted his application.

For reasons advised in detail to the parties yesterday, the application for an adjournment was declined and the hearing therefore proceeded today. As well as the information about the medical appointment being false, a key concern of the tribunal was the delay it has taken for this matter to come to hearing. If an adjournment had been granted, it would be close to a year after the application was initially filed that the matter would be heard. This runs contrary to requirement of the Tribunal to be “expeditious”.

The hearing therefore proceeded on 28 July 2023. The hearing

Only the landlord attended the hearing.

The tenant failed to appear at 9.30 am, being the allocated start time for the hearing. The tribunal waited 10 minutes, to give the tenant further time to connect to the hearing, but the tenant did not appear.

The Tribunal proceeded to consider and hear the tenant’s application, based on the material submitted and evidence given by the landlord.

The landlord has also made an application and that was also heard today.

I deal first with the tenant’s application and then with the landlord’s application.

I begin by observing that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standard of proof. That means that it is for an applicant to establish the facts of their claim on “the balance of probabilities”. It must establish that what they claim is more probable than not. Contemporaneous documents, reports and photographs are often important corroborative evidence to assist the Tribunal in determining what took place. Breach of the landlord's obligations - section 45 of the Residential Tenancies Act 1986 (the RTA)

Many of the tenant’s allegations fall to be determined under this section of the RTA.

Under s 45 of the RTA, a landlord must provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. A landlord must also comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. 1

The obligation of the landlord to provide premises in a reasonable state of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage (see Barfoot & Thompson v Casey. 2 ) Further, a tenant must notify the landlord as soon as possible after discovery of any damage to the premises and the need for repair. 3 The landlord's obligation is to then repair within a reasonable time after knowledge of the need for repair. 4 Leak in the hot water cylinder

The tenant claims there was water ingress into parts of the home, as a result of a leaking hot water cylinder. The tenant alleges it led to a “flood”. 1 Section 45 of the RTA 2 DC Auckland CIV 2005 004 1762, at [28] 3 S 40(1)(d) of the RTA, Vu v Hutchings [2016 ] NZTT 4054247, at [13] 4 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009 085 1431, at [15], and see further authorities discussed in “Residential tenancy law in New Zealand”, Stewart Benson, 2018, at page 132

The tenant had previously raised issues with the landlord about the hot water pressure and the landlord had sent plumbers to the property on two or three occasions to make various adjustments. The tenant also complained that the hot water cylinder was leaking from the roof, where it was stationed, but the landlord said that some leaking is necessary and that that is what the vents are for that are placed beneath the cylinder.

It seems that whilst the tenant was away on holiday however the hot water cylinder began leaking significantly. The tenant described it as a flood but the landlord said it was simply a leak. The tenant tried to contact the landlord’s representative, [The landlord’s representative]. [The landlord’s representative] was in hospital and had an auto reply on his e-mail directing any inquiries to a colleague. The tenant took some time before he was able to contact the colleague, “[the colleague]”. Immediately upon being contacted, [the colleague], who appeared also at the hearing, arranged for a plumber to attend at the property and, from there, various repairs were undertaken.

It was necessary for the property to be first dried out. There were various dryers and dehumidifiers stationed at the property, in particular, in the hallway. The tenants complained about the noise of the dryers, which would have been understandably inconvenient.

It took around 12 days for the property to be dried out.

After the property was dried out, the landlord arranged for remedial work to be undertaken on the walls of the hallway however the tenant refused to admit the build us into the property to undertake that work.

The landlord's evidence was that the tenant was given reimbursement of power charges of $533.94 by way of compensation for any disruption.

I agree with the tenant that the incident with the hot water cylinder represents a failure on the part of the landlord to comply with s 45 of the RTA. I accept that this would have caused disruption and loss of amenity to the tenant. I accept that the tenant was given reimbursement of power but I find that that was not adequate compensation. I award the tenant $1500 by way of compensation for this failure.

I am not prepared to award anything for exemplary damages because I am not satisfied that the landlord failed to address this issue when it arose. Issues with the deck / surrounds

The tenant had issues with the deck and surrounds. The tenant claims that there were various protruding nails as well as deck planks lifting up. The tenant also claims that the deck did not have a rail and that a step had to be installed.

The landlord recalled the tenant referring to nails protruding but the tenant raised those issues on inspections not as complaints but rather to explain where nails had popped up and the tenant had hammered them back down again.

In relation to the step that was installed, the landlord recalled the tenant saying when he first inspected the property that he would install a step from the ground to the deck. The landlord says that the step was otherwise fully functional and there was therefore no need to install a step.

I find that the landlord would have been willing to remedy any defects that were pointed out to it.

In relation to the deck, the landlord says that there is no obligation to install a rail where the deck is under 1 metre and he displayed a photograph showing that the deck is clearly less than one metre high.

There was no photographic evidence provided corroborating the alleged defects with respect to the deck/exterior of the property

Based on the materials submitted, I am not satisfied that the tenant has proven any breach of the landlord's obligations with respect to these aspects. It was the tenant's obligation to put before the tribunal adequate evidence supporting the claim. The tenant has failed to do so. Windows and wardrobe doors not sealing properly / mould

The tenant claimed that there was recurring mould in the bathroom and master bedroom after the “flood”. The tenant also complained that the wardrobe double doors jammed and that the windows on the northern side of the house had faulty frames.

The landlord denies these allegations and says that on one occasion he sent a builder to adjust the windows and believe some adjustments were made.

There is no corroborative evidence on file relating to any of these aspects and I find that the tenant has not proven this part of the claim. There were no photographs for instance submitted by the tenant which might have assisted in orroborating his claim. Smoke alarm

The tenant claimed that these smoke alarm had not been checked but the landlord submitted a photograph showing a current fire alarm, set to expire not until 2029.

I dismiss this aspect of the claim. It has not been proven. Losses due to “forced” eviction

The tenant complains that he was given early notice and in materials submitted in support of his application referred to “forced moving”. He is claiming costs incurred because he had to sell tools at a loss and he is claiming his moving costs.

The situation with the termination of the lease was that the landlord issued a s 63 day notice because the premises were required for occupation by the landlords daughter. The landlord's daughter has subsequently moved in and is still living at the property.

The landlord’s evidence, which I accept, was that the notice expired on 28 February 2023, and that the tenant vacated the premises on 23 February 2023.

The landlord claims that there was nothing wrongful about the notice which the landlord was perfectly entitled to deliver.

I dismiss this claim because there is no legal basis for it. The landlord has delivered a lawful notice requiring the tenant to vacate. I understand of course that the tenant had hoped to remain living in the property for longer and may have been frustrated by being asked to leave. The landlord said the tenant was very upset on learning he would have to vacate the premises.

I note that in any event there is no evidence of the losses that were allegedly incurred that have been itemised in the claim, being $4000 for losses on the sale of the tools because of a “forced sale”, and $4500, being the costs of moving. Lining of garage

Of his own volition, the tenant lined the garage whilst he was in occupation of the premises. He wanted to use the garage as a workshop and so had the garage lined for that purpose.

The landlord did not ask for this work to be done.

The tenant is claiming $2860 for that work. No breakdown is provided and nor are any invoices provided for that work.

I dismiss this aspect of the claim. There was no breach of the landlord's obligations which justified this work being done. Nor is there any corroborating evidence of the fact the work was done and what it cost. Issues with the gates /allegation of rats / pests/ birds and feral cat and remaining issues

The tenant raises other issues to do with the gates not working properly. There is no evidence that he had requested the landlord to repair the gates, once of which was otherwise fully functional, although a bit “sticky”. One of the gates had a padlock on it and when the tenant asked if he could cut the padlock the landlord agreed.

As with most of the issues in this case this aspect is only raised upon the end of the tenancy.

The tenant also raises an allegation of there being vermin and birds present at the property, together with a feral cat.

I dismiss this part of the claim. There is simply inadequate evidence supporting this part of the claim. Lack of an agreement

The tenant alleges that there was no tenancy agreement put in place but this has been produced by the landlord. I am not satisfied that the tenant has proven landlord breached its obligations to put in place a written tenancy agreement. Landlord’s claim

The landlord has applied for rent arrears and has provided rent records which prove the amount owing, as ordered above. The landlord is essentially claiming rent for the period 23 to 28 February 2023. During this period rent was not paid by the tenant.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.

The tenant did not remove all rubbish from the property. The tenant did a lot of his own building works at the property and had a lot of building materials stored at the property for that purpose.

When the tenant moved out photographs produced by the landlord showed that a lot of the unused building materials were left behind either outside, in the garage or under the house. Materials that were left under the house damaged part of the insulation in some places.

The landlord incurred a cost of $250 to remove all of that material which I consider to be quite low in the circumstances, based on the photographs provided. I award that some in favour of the landlord.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.

The evidence established that during the premises, the tenant has damaged part of the concrete driveway. The landlord said that this most likely arose because the tenant, without consent of the landlord, arranged for a container to be brought to the property. Not only did the landlord not consent, the landlord said not to bring a container to the property.

The container remained there for two months. The landlord believes that when the Hiab truck came to remove the container it most likely damaged the concrete driveway.

The landlord produced an invoice for $500 for work to repair the driveway.

I am satisfied that the invoice was reasonable for the work that was done.

I find that the damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.

The amount ordered is proved.

As both parties have had a measure of success I make no award for refund of the filing fee.

Reasons

Procedural history of this matter.

Claims and awards in Tenancy Tribunal application 4392520 — net $371.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$378.57		Rent arrears
Rubbish removal	$250.00		Rubbish removal
Repairs	$500.00		Repairs
Compensation		$1,500.00	Compensation
Total award	$1,128.57	$1,500.00
Net award		$371.43
Total payable by Landlord to Tenant		$371.43