What was Tenancy Tribunal case 4484601 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 4484601?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4484601?

The primary dispute was Mould & damp. Related themes: Property damage.

Where can I read the official tribunal order for case 4484601?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8777477-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4484601 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 4484601?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4484601?

The primary dispute was Mould & damp. Related themes: Property damage.

Where can I read the official tribunal order for case 4484601?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8777477-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4484601 — Mould & damp

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
The application is dismissed.

Reasons

Both parties attended the hearing on Thursday 23 March 2023.
This tenancy relates to a property at [Tenancy address suppressed] (“the premises”).
The tenancy commenced on 3 May 2019 and ended on 25 December 2022.
The landlord seeks compensation for damage to a carpet release of the bond and reimbursement of the filing fee.

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.
The proposition contained in the landlord email to the tenant dated 31 October 2022; “as per the tenancy agreement you signed, the property is to be returned to the landlord in the same condition you received it in.” is simply incorrect, as it suggests that a tenant will be responsible for damage that might be caused by fair wear and tear.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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) RTA. In this case the landlord does have insurance cover and the excess on any claim is $1,200.00.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) 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 landlord says that the carpet has been damaged during the course of the tenancy. An area near a sliding door in the lounge has become very worn and the landlord says that other areas of the lounge carpet have a number of black stains.
The landlord says that the wool carpet was installed when the house was first built in 2009, making it approximately 12 years old at the end of this tenancy.
The landlord says that the tenant has caused the damage to the carpet by using this sliding door as the main point of entry to the house as distinct from the main entry way which opens directly onto a tiled floor.
The landlord says that several black stains on the carpet have been caused by a resident having an unknown substance on the bottom of their shoes and then walking on the carpet. The landlord says that the stains have not been able to be removed.
The tenant says that the tenants used the main entrance way to the house when entering into the house from the roadway. They used the sliding door in question to gain access to their outdoor living area which had an outdoor fire and patio. Essentially, the tenant says that any damage that may have been caused was a result of fair wear and tear.
The first question for me to consider is whether the damage occurred during the tenancy. I accept that some of the damage to the carpet occurred prior to the tenancy and some during this tenancy.
The landlord inspection report dated 11 December 2019 refers to the carpet; “starting to wear in this area and suggest that a front door mat be put in this area.”
The landlord confirmed that these reports were not provided to the tenant. The report suggests to me that even at this early point in the tenancy, the carpet was staring to wear. It may be that the carpet was wearing by use, with tenants walking on it, but that is part of the normal fair wear and tear of daily life. It may be that some damp and the sun has exacerbated the damage.
The tenant says that she had raised her concerns over the deterioration of the carpet during inspections carried out by property managers over the term of the tenancy but that she received no feedback from the property manager.
Initially there was a suggestion that the damage may have been caused by the tenant’s cat. The landlord accepted that this was not the cause.
The onus of proving that the damage was not caused by fair wear and tear is on the landlord. In Nixon v Geal-Otter North Shore, TT 216/94, 30 January 1996 the Tribunal held that “Mere use of the premises will by the law of inevitability produce a deterioration in condition...Where a landlord proves the existence of damage, the landlord should also assume a burden of proof to exclude fair wear and tear. If a tenant raises a plausible explanation that points to fair wear and tear as an explanation, the landlord will fail in the claim.”
Fair wear and tear has been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant. See discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403.
.The job of proving that the damage was not caused by fair wear and tear falls on the landlord.
The standard of proof is the balance of probabilities. I am not satisfied that it has been met by the landlord and I dismiss the claim. In my view, the areas where the landlord says damage has been caused by the tenant may well have occurred as a result of fair wear and tear.
The landlord has not been wholly or substantially successful and I make no order for reimbursement of the filing fee.
Both parties have applied for name suppression. The landlord has not been wholly or substantially successful in this matter and the landlord application is dismissed. The tenant has been wholly successful and the tenant application for suppression is granted.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
The application is dismissed.

Reasons

Both parties attended the hearing on Thursday 23 March 2023.
This tenancy relates to a property at [Tenancy address suppressed] (“the premises”).
The tenancy commenced on 3 May 2019 and ended on 25 December 2022.
The landlord seeks compensation for damage to a carpet release of the bond and reimbursement of the filing fee.

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.
The proposition contained in the landlord email to the tenant dated 31 October 2022; “as per the tenancy agreement you signed, the property is to be returned to the landlord in the same condition you received it in.” is simply incorrect, as it suggests that a tenant will be responsible for damage that might be caused by fair wear and tear.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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) RTA. In this case the landlord does have insurance cover and the excess on any claim is $1,200.00.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) 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 landlord says that the carpet has been damaged during the course of the tenancy. An area near a sliding door in the lounge has become very worn and the landlord says that other areas of the lounge carpet have a number of black stains.
The landlord says that the wool carpet was installed when the house was first built in 2009, making it approximately 12 years old at the end of this tenancy.
The landlord says that the tenant has caused the damage to the carpet by using this sliding door as the main point of entry to the house as distinct from the main entry way which opens directly onto a tiled floor.
The landlord says that several black stains on the carpet have been caused by a resident having an unknown substance on the bottom of their shoes and then walking on the carpet. The landlord says that the stains have not been able to be removed.
The tenant says that the tenants used the main entrance way to the house when entering into the house from the roadway. They used the sliding door in question to gain access to their outdoor living area which had an outdoor fire and patio. Essentially, the tenant says that any damage that may have been caused was a result of fair wear and tear.
The first question for me to consider is whether the damage occurred during the tenancy. I accept that some of the damage to the carpet occurred prior to the tenancy and some during this tenancy.
The landlord inspection report dated 11 December 2019 refers to the carpet; “starting to wear in this area and suggest that a front door mat be put in this area.”
The landlord confirmed that these reports were not provided to the tenant. The report suggests to me that even at this early point in the tenancy, the carpet was staring to wear. It may be that the carpet was wearing by use, with tenants walking on it, but that is part of the normal fair wear and tear of daily life. It may be that some damp and the sun has exacerbated the damage.
The tenant says that she had raised her concerns over the deterioration of the carpet during inspections carried out by property managers over the term of the tenancy but that she received no feedback from the property manager.
Initially there was a suggestion that the damage may have been caused by the tenant’s cat. The landlord accepted that this was not the cause.
The onus of proving that the damage was not caused by fair wear and tear is on the landlord. In Nixon v Geal-Otter North Shore, TT 216/94, 30 January 1996 the Tribunal held that “Mere use of the premises will by the law of inevitability produce a deterioration in condition...Where a landlord proves the existence of damage, the landlord should also assume a burden of proof to exclude fair wear and tear. If a tenant raises a plausible explanation that points to fair wear and tear as an explanation, the landlord will fail in the claim.”
Fair wear and tear has been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant. See discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403.
.The job of proving that the damage was not caused by fair wear and tear falls on the landlord.
The standard of proof is the balance of probabilities. I am not satisfied that it has been met by the landlord and I dismiss the claim. In my view, the areas where the landlord says damage has been caused by the tenant may well have occurred as a result of fair wear and tear.
The landlord has not been wholly or substantially successful and I make no order for reimbursement of the filing fee.
Both parties have applied for name suppression. The landlord has not been wholly or substantially successful in this matter and the landlord application is dismissed. The tenant has been wholly successful and the tenant application for suppression is granted.

Tenancy Tribunal case 4484601 — Mould & damp

At a glance

Tenancy Tribunal case 4484601 — Mould & damp

At a glance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions