Published tribunal order
Tenancy Tribunal case 4487480 — Tenancy dispute
Decided 4 Dec 2023 · Published 4 Dec 2023 · Application 4487480
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of both party names and identifying details.
- [The tenant/s] to pay [The landlord/s] $1,136.17 from the bond.
- The Bond Centre is to distribute the bond of $1,136.17 ([Bond number suppressed]) immediately in the following way: $29.12 to [The landlord/s] $1,620.88 to [The tenant/s]
- All other claims are dismissed.
Reasons
- Both parties attended the hearing which was held remotely by teleconference. [The property manager] represented the landlord.
- [The tenant/s] initially applied for her bond to be refunded.
- The landlord then cross applied for compensation from the bond for having to remove rubbish and a fibre installation following the end of the tenancy. Background
- The tenancy took place between 17 June 2017 and 8 January 2023. Originally the tenancy was managed on behalf of the owners being [The landlord/s], by [The property management company]. However, in 2018 there was a falling out between them and the agency was discontinued. [The property manager] effectively took over as agent for [The landlord/s] from that date. [The property manager] is now the corporate trustee of [The landlord/s]. Evidential standard
- In considering the claims, the “standard of proof” or the level or evidence required is “on the balance of probabilities.” In other words, each party must establish with evidence that their claim is “more likely than not.” In this decision I consider each of the claims separately bearing in mind the standard of proof required. Finally, I note that whilst I may not have referred to all the evidence presented at the hearing for the purposes of practicality, the parties can be assured that it has all been considered. Fibre
- In 2018, while [The property management company] were still managing the property, [The tenant/s] was approached by Vodaphone offering fibre installed at no charge. She says she went into the [The property management company] office and asked if this would be alright and whether they needed to ask the owner first or not. [The tenant/s] cannot remember the agent she spoke to but says they agreed to the instal and advised that they did not need to check with the owner.
- [The tenant/s] therefore accepted the contract with [The installer] however when they came to install it, she says they could not access the underfloor as there was a padlock over the door. She therefore went to the [The property management company] office again and asked for the key explaining what it was for and they provided it to her. She returned it after the work was completed.
- Some time later when [The property manager] attended the property, he saw the installation and was not pleased as it is a rough and obvious install. He had subsequent discussions with [The property management company] about it and to him they asserted that they did not give consent for the install.
- [The property manager]’s evidence is that [The property management company] did not give consent for the install and it would not be within their processes to do so without owner consent anyway. Further they have a key log which shows no mention of the underfloor key being given out. He says that the instal has damaged the house and rendered the alarm non-functional and he wants it removed.
- [The property manager] says that [The tenant/s] has breached the following clause of the tenancy agreement:
- He says she has also breached section 42 of the Residential Tenancies Act 1986 (RTA) which stated at the relevant time: (1) The tenant shall not affix any fixture to the premises, or make any renovation, alteration, or addition of or to the premises, except— (a) in accordance with the tenancy agreement; or (b) with the prior written consent of the landlord.
- Accordingly, [The property manager] seeks compensation for having to remove the instal at the end of the tenancy. He did request that [The tenant/s] do it herself prior to vacating and said that if she did, he would not require her to repair the damage. However, as she has not it is now his issue to deal with.
- [The tenant/s] agrees that she did not remove it as requested as she considered she had obtained consent for the work and as such it should remain at the property. She refers to text messages between herself and [The property manager] in which he accepts she had consent and agreed the issue was with [The property management company] and their chaotic office practices. Several messages from [The property manager] as follows:
- [The property manager] agrees he did send the messages but was basing them on what he had been told by [The tenant/s] at that time. Their contract with [The property management company] ended in January 2019 with no resolution to the fibre issue. In April [The property manager] advised [The tenant/s] of this and asked her to simply remove it when she vacated the property, and they would absorb the cost of repairing the damage the instal inflicted.
- Both the tenancy agreement and the RTA required [The tenant/s] to have written consent to allow the fibre instal. She did not have that and ostensibly relied on what [The property management company] told her at the time. This was accepted by [The property manager] at the time he took over the property management and he effectively advised [The tenant/s] that he would resolve it with [The property management company]. When he did not accept their offers of remediation, he has asked [The tenant/s] to remove it at the end of the tenancy, effectively splitting the required remediation between the landlord and the tenant as he would be responsible for the repair.
- Tenants are not permitted to contract out of their rights under the RTA 1 but landlords are permitted to agree to tenants forgoing or lessening their responsibilities under the RTA. Therefore, whilst the tenancy agreement and RTA required [The tenant/s] to obtain written consent to having the fibre installed, if the landlord provided her with oral consent in lieu of written consent, she was entitled to accept that.
- Having considered the evidence provided, I find it established to the statutory threshold that [The property management company] did give such oral consent to [The tenant/s]. In coming to this finding, I rely on the following: a. [The tenant/s] has maintained this position ever since 2018 as can be evidenced in her communications with [The property manager]. b. Presumably based on his interactions with [The property management company] at that time, [The property manager] had preferred [The tenant/s]’s explanation of events over [The property management company]’s given how far he went in arguing the matter with them. It clearly seemed likely to him at the time that they had not followed their own procedures and provided the consent. c. [The property management company] head office also appear to have accepted that it could have happened given they offered to remediate the issue for [The property manager].
- [The property manager] chose not to accept the remedies [The property management company] were offering at the time. This choice however does not allow him to seek an alternative remedy from [The tenant/s] now.
- Accordingly, as I am satisfied that [The property management company] effectively waived [The tenant/s]’s obligations to obtain written consent when they provided her with oral consent, with no specified condition that she remove it when she left, I do not find it established that she should be liable for the removal now. Therefore, this claim is dismissed.
- [The property manager] further argues that [The tenant/s] must have forged her agreement with [The installer] which may have required her to confirm she had owner consent. No specific contract signed by her was produced however [The installer] have provided the document she likely signed at the time which would have had her sign to confirm she had consent. Regardless, her relationship with 1 S11 RTA [The installer] is separate to her obligations under the RTA and not a matter I am permitted to make findings on.
- As to [The property manager]’s concern that the wires and other paraphernalia from the instal remain at the premise and he cannot interfere with him, I note section 42(4) of the RTA which states: “Any fixtures affixed by the tenant to the premises but not removed by the tenant on the expiry of the tenancy become the property of the landlord.”
- Regarding the concern that the instal has rendered the alarm system redundant as the two cannot work in conjunction, I do not find that the evidence has proven that the two cannot exist in tandem. Further, as the copper network which the alarm ostensibly runs off is being phased out in areas where fibre is available, it is likely the alarm would be ineffective anyway. Accordingly, I am not satisfied that [The tenant/s] has caused any damage to the alarm system.
- Finally, I note that in 2021 section 45B of the RTA came into force which directs landlords to agree to the installation of a fibre connection to tenanted properties, with some limited exclusions. Whilst this section is not relevant for this tenancy as it came into force after this fibre installation, it does indicate the Government’s position on fibre installation in tenanted premises. Rubbish
- 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) RTA 1986.
- [The property manager] seeks $21.12 being the Uber fare it would cost him to take the paint tins left on the property to a paint store for recycling. He says the paint tins are not his as it is not his type of paint. Further, they are dated 10 August 2018 which was during the tenancy; accordingly, they must be [The tenant/s]’s and she should be responsible for this cost.
- [The tenant/s] said initially that they were from paint used to paint the interior during the tenancy but then clarified that they were present at the commencement of the tenancy. She says she took all her paint when requested by [The property manager] but left these pots there as they were not hers. She says [The property manager] saw them at the final inspection and did not mention them, so she assumed he agreed that they were not hers.
- There was an in-depth discussion at the hearing about what items were in the area at the commencement of the tenancy however no one has photos from the time. Regardless, as these tins are dated during the tenancy, they clearly were not in existence in 2017.
- Having considered the evidence, I find it more likely than not that they were [The tenant/s]’s and she mistakenly omitted to take them when she left. Accordingly, I find it just that she reimburse [The property manager] the reasonable cost he is seeking to deal with them himself. Filing fee
- Both parties filed applications with the Tribunal, and both were successful to a degree. Accordingly, I find the Tribunal filing fee must be the responsibility of each party directly Suppression
- Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. This includes being successful in their application or in their defence to an application. As I consider both parties substantially successful in their applications, I allow both parties applications for suppression.