What was Tenancy Tribunal case 4397843 about?

The tribunal order states: The Tribunal orders suppression of the landlord’s and tenant’s name and

How much money was awarded in case 4397843?

Break Lease Reasonable Costs Re Lett…: $495.96 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $1,738.86 awarded to landlord

What type of tenancy dispute was case 4397843?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4397843?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8381375-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4397843 about?

The tribunal order states: The Tribunal orders suppression of the landlord’s and tenant’s name and

How much money was awarded in case 4397843?

Break Lease Reasonable Costs Re Lett…: $495.96 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $1,738.86 awarded to landlord

What type of tenancy dispute was case 4397843?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4397843?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8381375-Tribunal_Order_Redacted.pdf.

Unit/Flat 3, 52 Queens Avenue, Frankton, Hamilton 3204 Tenancy Tribunal Case 4397843 — Rent arrears

Claims and awards in Tenancy Tribunal application 4397843 — net $255.26 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears 13 February 2022	$1,738.86	Rent arrears 13 February 2022
break lease reasonable costs re letting	$495.96	break lease reasonable costs re letting
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$255.26
Total payable by Tenant to Landlord	$255.26

Order

The Tribunal orders suppression of the landlord’s and tenant’s name and identifying details.
The Bond Centre is to pay the bond of $2,000.00 ([Bond number suppressed]) to [The landlord/s] immediately.
[The tenant/s] must pay [The landlord/s] $255.26 immediately, calculated as shown in table below.

Reasons

[The landlord/s representative] appeared for the landlord. [Tenant 1] appeared for the tenant and was assisted by an [Interpreter].
The tenancy commenced on 12 June 2021 and was for a fixed term to expire on 17 June 2022. On or about 21 January 2022 the tenant advised the landlord that they intended vacating the property. On or about 07 February 2022 the tenant vacated the property. There was no concluded agreement to end the fixed term. On 13 February 2022, the landlord entered into a new fixed term agreement with a new tenant to commence on 14 February 2022.
On 09 September 2022, the landlord filed a claim seeking rent arrears to 13 February 2022, costs of re letting, compensation for damage to the stove cooktop, and reimbursement of the filing fee.
The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).

How much is owed for rent?

In the absence of any agreement between the parties to the contrary, having entered into a fixed term agreement, the tenant remained liable for the rent until the end of the fixed term, or until the landlord entered into a new tenancy agreement. The landlord has produced a rent summary dated 13 February 2022, which records all rent payments made by the tenant. [The landlord/s representative] states the landlord entered into a new agreement with a new tenant on 14 February 2022. The amount ordered is proved. Break lease fee
The landlord is entitled to seek reasonable costs associated with the entering of a new tenancy agreement. The property was re tenanted within a relatively short period. The invoice produced is for a total of $806.76 for advertising, vetting and credit checks, time spent at a viewing on 04 February 2022, preparing a tenancy agreement, time spent at an end of tenancy inspection on 10 February 2022, and being present when the new tenant moved in on 14 February 2022. The amount claimed also includes travel from Tauranga to Hamilton, and return, for viewings, and to be present when the new tenant moved in. Are all these costs reasonable?
I am not satisfied that the post tenancy inspection, being present when the new tenant moved in, and the full travel costs are reasonable costs associated with re letting. Had the tenancy run its course the landlord would have conducted an end of tenancy inspection in any event. The landlord’s attendance at the property when the new tenant moved in occurred after the parties had entered into their agreement on 09 February 2022. I therefore do not consider this to be a cost properly associated with re letting. Concerning the travel costs. The property manager resides in Tauranga and travelled to Hamilton for the viewing on 04 February 2022, and again on 14 February 2022. I am not satisfied that liability for the full costs associated with travelling to the property from out of town are reasonable.
Accordingly, I deduct $28.75 for the inspection on 10 February 2022, and $215.63 for attending at the moving in of the new tenant on 14 February 2022. I award half of the travel costs of $132.84 or $66.42. In my view the reasonable costs of re letting in this case are $ 495.96.

Is the tenant responsible for damage to the premises?

The landlord claims that the tenant damaged the glass cooktop during the tenancy and that the damage is more than fair wear and tear.
To succeed with a claim for damage the landlord must prove that damage to the cook top 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 of the Act.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) of the Act.
In Taylor v Webb [1937] 2KB 283 (CA), the Court described fair wear and tear, as: That brought about by the tenant, and other persons present in or on the premises with the consent of the tenant, either intentionally or as a normal incident of a tenant’s occupation in the course of fair (or reasonable) use of the premises for any purposes for which they were let.
In Mercer v Smith, Dunedin TT 228/93, 14 December 1993, the Tribunal in dealing with the issue of carelessness stated, the question was whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. Carelessness therefore has its normal meaning: lack of care, negligence, or lack of foresight. The test is objective and not based on the subjective opinion of the tenant or landlord.
In Nixon v Geal–Otter, DC Northshore TT216/94, 30 January 1996, the Court stated: “... If a tenant succeeds in showing that damage proven was not intentional or careless, then the explanation for its existence is likely to rest in the fair wear and tear category ...”
The landlord has insurance for damage with an excess of $650.00 per claim.
There is no dispute that the damage occurred during the tenancy.
The landlord has produced a photograph of the cooktop showing a crack running across the lower front left element. The landlord states they showed the photographs to the local supplier of the cooktop who then forwarded them on to the manufacturer, who advised that in their opinion the damage had been caused by impact, suggesting that something heavy had been dropped onto the cooktop, and was not therefore covered by the manufacturer’s warranty. [The landlord/s representative] states that following the replacement of the cooktop, the supplier, having had the opportunity to inspect the cooktop, confirmed that the damage had been caused by impact. No written confirmation of this has been produced. [The landlord/s representative] states that cooktops are made from strengthen glass and it was unlikely to have been damaged by normal use. [The landlord/s representative] states that the act of dropping something heavy onto the cooktop was likely the result of a careless act on the part of the tenant.
The tenant states they had been cooking using a large pot, and that when they removed the pot from the element had discovered the crack. The tenant denies dropping anything on the cooktop. The tenant denies being careless and states there was nothing unusual in their manner of cooking. The tenant states that as soon as it occurred that they advised the landlord, and further were advised to continue using the cooktop. This does not appear to be disputed.
I have heard from the tenant. I cannot reject their evidence that they had not been careless in their use of the cooktop. While I am satisfied that the damage occurred during the tenancy, I am not satisfied, to the required standard that it was the result of a careless act on the part of the tenant or anyone at the property with the tenant’s permission. On that basis I cannot rule out that the damage may have been the result of fair wear and tear. The claim for replacing the damaged cooktop is dismissed. Costs
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
Both parties seek name suppression. In my view the landlord has been substantially successful with their claims. Equally the tenant, in my view, has also been substantially successful defending the claims. Accordingly, both are granted name suppression.

Claims and awards in Tenancy Tribunal application 4397843 — net $255.26 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears 13 February 2022	$1,738.86	Rent arrears 13 February 2022
break lease reasonable costs re letting	$495.96	break lease reasonable costs re letting
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$255.26
Total payable by Tenant to Landlord	$255.26

Order

The Tribunal orders suppression of the landlord’s and tenant’s name and identifying details.
The Bond Centre is to pay the bond of $2,000.00 ([Bond number suppressed]) to [The landlord/s] immediately.
[The tenant/s] must pay [The landlord/s] $255.26 immediately, calculated as shown in table below.

Reasons

[The landlord/s representative] appeared for the landlord. [Tenant 1] appeared for the tenant and was assisted by an [Interpreter].
The tenancy commenced on 12 June 2021 and was for a fixed term to expire on 17 June 2022. On or about 21 January 2022 the tenant advised the landlord that they intended vacating the property. On or about 07 February 2022 the tenant vacated the property. There was no concluded agreement to end the fixed term. On 13 February 2022, the landlord entered into a new fixed term agreement with a new tenant to commence on 14 February 2022.
On 09 September 2022, the landlord filed a claim seeking rent arrears to 13 February 2022, costs of re letting, compensation for damage to the stove cooktop, and reimbursement of the filing fee.
The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).

How much is owed for rent?

In the absence of any agreement between the parties to the contrary, having entered into a fixed term agreement, the tenant remained liable for the rent until the end of the fixed term, or until the landlord entered into a new tenancy agreement. The landlord has produced a rent summary dated 13 February 2022, which records all rent payments made by the tenant. [The landlord/s representative] states the landlord entered into a new agreement with a new tenant on 14 February 2022. The amount ordered is proved. Break lease fee
The landlord is entitled to seek reasonable costs associated with the entering of a new tenancy agreement. The property was re tenanted within a relatively short period. The invoice produced is for a total of $806.76 for advertising, vetting and credit checks, time spent at a viewing on 04 February 2022, preparing a tenancy agreement, time spent at an end of tenancy inspection on 10 February 2022, and being present when the new tenant moved in on 14 February 2022. The amount claimed also includes travel from Tauranga to Hamilton, and return, for viewings, and to be present when the new tenant moved in. Are all these costs reasonable?
I am not satisfied that the post tenancy inspection, being present when the new tenant moved in, and the full travel costs are reasonable costs associated with re letting. Had the tenancy run its course the landlord would have conducted an end of tenancy inspection in any event. The landlord’s attendance at the property when the new tenant moved in occurred after the parties had entered into their agreement on 09 February 2022. I therefore do not consider this to be a cost properly associated with re letting. Concerning the travel costs. The property manager resides in Tauranga and travelled to Hamilton for the viewing on 04 February 2022, and again on 14 February 2022. I am not satisfied that liability for the full costs associated with travelling to the property from out of town are reasonable.
Accordingly, I deduct $28.75 for the inspection on 10 February 2022, and $215.63 for attending at the moving in of the new tenant on 14 February 2022. I award half of the travel costs of $132.84 or $66.42. In my view the reasonable costs of re letting in this case are $ 495.96.

Is the tenant responsible for damage to the premises?

The landlord claims that the tenant damaged the glass cooktop during the tenancy and that the damage is more than fair wear and tear.
To succeed with a claim for damage the landlord must prove that damage to the cook top 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 of the Act.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) of the Act.
In Taylor v Webb [1937] 2KB 283 (CA), the Court described fair wear and tear, as: That brought about by the tenant, and other persons present in or on the premises with the consent of the tenant, either intentionally or as a normal incident of a tenant’s occupation in the course of fair (or reasonable) use of the premises for any purposes for which they were let.
In Mercer v Smith, Dunedin TT 228/93, 14 December 1993, the Tribunal in dealing with the issue of carelessness stated, the question was whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. Carelessness therefore has its normal meaning: lack of care, negligence, or lack of foresight. The test is objective and not based on the subjective opinion of the tenant or landlord.
In Nixon v Geal–Otter, DC Northshore TT216/94, 30 January 1996, the Court stated: “... If a tenant succeeds in showing that damage proven was not intentional or careless, then the explanation for its existence is likely to rest in the fair wear and tear category ...”
The landlord has insurance for damage with an excess of $650.00 per claim.
There is no dispute that the damage occurred during the tenancy.
The landlord has produced a photograph of the cooktop showing a crack running across the lower front left element. The landlord states they showed the photographs to the local supplier of the cooktop who then forwarded them on to the manufacturer, who advised that in their opinion the damage had been caused by impact, suggesting that something heavy had been dropped onto the cooktop, and was not therefore covered by the manufacturer’s warranty. [The landlord/s representative] states that following the replacement of the cooktop, the supplier, having had the opportunity to inspect the cooktop, confirmed that the damage had been caused by impact. No written confirmation of this has been produced. [The landlord/s representative] states that cooktops are made from strengthen glass and it was unlikely to have been damaged by normal use. [The landlord/s representative] states that the act of dropping something heavy onto the cooktop was likely the result of a careless act on the part of the tenant.
The tenant states they had been cooking using a large pot, and that when they removed the pot from the element had discovered the crack. The tenant denies dropping anything on the cooktop. The tenant denies being careless and states there was nothing unusual in their manner of cooking. The tenant states that as soon as it occurred that they advised the landlord, and further were advised to continue using the cooktop. This does not appear to be disputed.
I have heard from the tenant. I cannot reject their evidence that they had not been careless in their use of the cooktop. While I am satisfied that the damage occurred during the tenancy, I am not satisfied, to the required standard that it was the result of a careless act on the part of the tenant or anyone at the property with the tenant’s permission. On that basis I cannot rule out that the damage may have been the result of fair wear and tear. The claim for replacing the damaged cooktop is dismissed. Costs
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
Both parties seek name suppression. In my view the landlord has been substantially successful with their claims. Equally the tenant, in my view, has also been substantially successful defending the claims. Accordingly, both are granted name suppression.

Tenancy Tribunal case 4397843 — Rent arrears at Unit/Flat 3, 52 Queens Avenue, Frankton, Hamilton 3204

At a glance

Tenancy Tribunal case 4397843 — Rent arrears at Unit/Flat 3, 52 Queens Avenue, Frankton, Hamilton 3204

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

Is the tenant responsible for damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

Is the tenant responsible for damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions