Published tribunal order
Tenancy Tribunal case 4511650 — Property damage
Decided 22 Nov 2023 · Published 22 Nov 2023 · Application 4511650
- Property damage
- Cleanliness
- Exemplary damages
Party names are redacted in the official published order.
Order
- to pay $1,522.14 from the bond, calculated as shown in table below. 2.
Reasons
- Both parties attended the hearing.
- The landlord claims are: (i)That the tenant failed to meet their obligations under a fixed term tenancy agreement. The landlord is seeking rent from when the tenant vacated to the entering of a new tenancy, and the costs of reletting the property, (ii)That the tenant is responsible for damage to a wall and the carpet.
- The tenant claims are: (i)That the agreement was invalid as they had entered into the agreement following a misrepresentation concerning the number of bathrooms. (ii)If the agreement there was no misrepresentation the agreement is otherwise invalid because they did not intend to agree to a fixed term, (iii)That the landlord failed to maintain an approved form of heating in the main living room and failed to address draught issues, (iv)That the landlord had failed to maintain a lock to the toilet door, the dishwasher, and the carpark, (v)That the landlord failed to lodge the bond within the required time frame, (vi)That they overpaid the rent by twelve hours.
- The onus of proving these claims rests with each party. The standard required is on the balance of probabilities. Each party must establish more likely than not that the other has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”). Tenant’s claims
- The tenant approached the landlord after viewing the property for rent on Trade Me. The tenant stated they were drawn to the property because of its location, close to the university, and that it had two bathrooms. On or about 22 November 2022, the landlord agreed to remove the property from Trade Me on the condition that the tenant would pay half the bond. The landlord sent the tenant a partially completed tenancy agreement. In the section recording the type of tenancy, fixed term or periodic, the landlord had written in brackets “(one year).” There was no commencement date, with the parties tentatively agreeing 17 December 2022, to be confirmed. The tenant signed and returned the agreement.
- On 02 December 2022, the tenant, who had been residing in the South Island, arrived in [City 1]. The tenant stated that they had attempted to arrange a viewing of the property by a family member on their behalf prior to arrival but had been unsuccessful.
- On 09 December 2022, the tenant and their teenage daughter viewed the property with the landlord for the first time. The property has two stories. During the viewing, the tenant noted that the property did not have two bathrooms and instead had a full bathroom and toilet upstairs and second toilet downstairs. The tenant stated they felt that having signed the agreement that they could not back out. Significantly, despite having the opportunity to do so, the tenant did not raise the matter with the landlord at all.
- At the conclusion of the viewing, the parties completed the agreement, with a commencement date of 13 December 2022, and an end date of 13 December 2023. Despite the tenant asserting that the type of tenancy, periodic or fixed term, was not discussed, and that they did not agree to a fixed term, both parties have signed the agreement and initialled the commencement and end dates.
- The tenant called their daughter to give evidence, who told me that they could not recall much of what occurred, that they had a quick look through the property, did not like it, and went and sat in the car.
- Section 78(1)(g) of the Act states that the Tribunal may, where it appears that an agreement between the parties has been induced by misrepresentation, make orders varying or setting aside the agreement, either wholly or in part. In Gillies v Blackham and Co Real Estate Limited [2021] NZTT Timaru 4297433 at para [6] the Tribunal stated, “A misrepresentation is a false statement of fact made by one of the contracting parties to the other. Silence is not a misrepresentation unless the maker of the statement has a duty in law to speak.”
- The landlord accepted that the advertisement incorrectly described the property as having two bathrooms, when it, in fact, did not. The landlord states the tenant looked through the property with their daughter but did not raise the number of bathrooms before signing the agreement. The landlord stated that the only discussion between the parties concerned the start date of the tenancy. After agreeing the commencement date and then signing the contract, the landlord believed that the tenant had accepted both the property and the fixed term. The landlord stated that the tenant had only raised the issue concerning the bathrooms after they had given notice to vacate.
- Although the advertisement incorrectly describes the number of bathrooms, the tenant inspected the property and discovered the misrepresentation. Despite doing so, the tenant accepted the property and entered the agreement. On that basis, I am not satisfied that the misrepresentation, in fact, induced the tenant to enter into the agreement. Concerning the tenant’s claim that they did not intend to enter a fixed term. The agreement clearly records that at the time of completing the agreement on 09 December 2022 the parties agreed to a fixed term. Based on the evidence, I am satisfied that the parties entered into a fixed term tenancy agreement.
- On 12 December 2022, the tenant paid the remaining half of the bond. The tenant states that having received the full bond that the landlord had then failed to lodge it with the Bond Centre within the required time frame.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) of the Act.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A of the Act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) of the Act.
- I am satisfied that the landlord has failed to lodge the bond within the required time. The landlord states that they were away and did not send the bond lodgement form to the tenant until 30 January 2023. The form was completed and returned by the tenant on 04 February 2023, whereafter the payment was made. The landlord states the delay, considering the statutory holidays over the Christmas and New year period, amounted to 7 working days. The tenant stated that they were concerned that the lodgement had been delayed. It is in the public interest that bonds are dealt with in accordance with the Act. Considering these factors, I award the tenant exemplary damages of $150.00.
- Concerning the tenant’s claim that the landlord has failed to provide and maintain the property in a reasonable condition, and in the case of the heating and draught stopping, failed to meet the relevant regulations.
- Section 45(1)(b) of the Act states that the landlord must provide and maintain the property in a reasonable state of repair, having regard to the age and character of the property and the period during which the property is likely to remain habitable and available for residential purposes.
- The landlord’s obligation under section 45(1)(b) of the Act is to investigate and repair any defect brought to their attention within a timeframe which is reasonable in the circumstances. As to what that timeframe is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right whatever the problem might be.
- Section 45(1)(c) states that the landlord must comply with any relevant enactment in relation to buildings, health, and safety. In this case the Healthy Homes Standards relating to heating and draught stopping.
- Concerning the draught stopping, the tenant states that the windows in the downstairs bedroom did not close properly, resulting in a draught. The landlord denies that there are any gaps, and states that the matter was never raised. There is no evidence that the matter was raised until the filing of the application. There are no photographs of the windows. There is insufficient evidence, and the claim is dismissed.
- There is a wall mounted electric heater in the main living room. The heater is not hard wired and instead plugs into a power socket. The tenant states that the heater tripped a power board into which it was plugged, and that when they turned it on again, they smelt an electrical smell. The tenant did not attempt to use the heater again, adding that when they had used the heater it was not sufficient. The tenant stated that they had not raised the matter with the landlord until the application.
- The landlord has produced a floor plan of the property and provided details of the heater. The landlord submits, and I accept, that the heater met the Healthy Homes Standards. The landlord added that at the end of the tenancy he tested the heater and could not detect any fault. I am not satisfied that the landlord has failed to meet their obligations and the claim is dismissed.
- The tenant stated that they discovered on the first day of the tenancy that the dishwasher did not work, and that it just kept “beeping.” The tenant advised the landlord who they state suggested they go onto the internet and look at the instruction manual. The tenant states that they couldn’t resolve the matter although they did not raise it a second time.
- The landlord states that they have the same dishwasher and that what had been described to them sounded like a user issue hence the referral to the instruction manual. Ideally some form of instruction could have been provided in hard copy. The landlord state that they never heard about the matter again and assumed it resolved. The landlord states at the end of the tenancy they checked the dishwasher and detected no fault.
- The obligation on the landlord is to respond appropriately. I am not satisfied that they have failed to do so. Having suggested a remedy, the matter was not raised as an ongoing issue, and it would have been reasonable for the landlord to assume that it had been addressed. The claim that the landlord has failed to maintain the dishwasher is dismissed.
- On 30 January 2023, the tenant advised the landlord the lock to the upstairs toilet was faulty. The landlord requested a photograph which was sent to them on 01 February 2023. The landlord states that they attempted to get a contractor to visit the property, but due to the time of the year had difficulty doing so. The matter remained outstanding until the end of the tenancy on 25 February 2023.
- While I am satisfied that the landlord’s initial response was appropriate, the matter remained unresolved, and on that basis, I am satisfied that there has been a breach. However, I am not satisfied that the loss of amenity suffered by the tenant, or the other occupants was significant. I award the tenant damages of $50.00.
- The property does not have a garage and is provided with a designated car park. The tenant stated that someone was parking in their designated park and that despite leaving notes on the offending vehicle that they had continued to do so. On 12 January 2023, the tenant sent the landlord a text message concerning the matter. The tenant stated that they had received no response. The tenant did not raise the matter with the landlord again but state that the issue remained unresolved at the end of the tenancy.
- The landlord states that the property is in a complex managed by a body corporate. The landlord has produced an email sent to a representative for the body corporate on 31 January 2023, raising the matter and asking that it be investigated. The email was copied to the tenant. The email was acknowledged by the representative on 01 February 2023.
- On 31 January 2023, the landlord sent another email to the tenant stating that they had been overseas and had not received the text message until they returned. In the email, the landlord invited the tenant to let them know if the issue with the carpark continued.
- I am not satisfied that the landlord has failed to respond appropriately. They took steps to address the issue. Despite inviting the tenant to advise if the issue continued, the tenant did not do so. It would therefore have been reasonable for the landlord to assume that it had been addressed. The claim is dismissed.
- The final claim made by the tenant concerns an overpayment of the rent. On 21 January 2023, the tenant gave the landlord notice to vacate the property on 24 February 2023, citing that they had been misled about the number of bathrooms, that the landlord had failed to address issues concerning the maintenance of the property, had failed to lodge the bond, and had been out of the country for more than 21 days and had failed to appoint an agent. The tenant also stated that there were strange noises at the property and raised concerns that the landlord had not disclosed the history of the property. There is no claim made in the application filed concerning the appointment of an agent.
- The landlord replied that the agreement was for a fixed term. That the tenancy could either end by agreement, which they preferred, or that the parties would have to go to the Tribunal. There was no reply from the tenant. Although the landlord did not accept that the tenant’s notice would excuse them from their rent liability under the fixed term, they acknowledged, to mitigate the landlord’s potential loss, that the tenant would vacate the property on 24 February 2023. This date was a Friday.
- On or about 22 February 2023, the tenant requested that the vacate day be pushed out one day to Saturday 25 February 2023, a more convenient day to move. The tenant paid rent for 25 February 2023. An arrangement was made for the handing over of the keys at 12 noon. The tenant also believed that the landlord had advised them “by law” they had to vacate at midday, which after handing over the keys they did. The landlord denies telling the tenant that by law they had to leave at midday. There appears to have been a miscommunication. The landlord accepts, however, that the tenant had paid up until midnight on 25 February 2025 and that a half days rent, $37.86, should be refunded. Landlord’s claim
Is the tenant responsible for damage to the premises?
- The landlord claims that the tenant damaged a wall and the carpet during the tenancy and that the damage is more than fair wear and tear. The landlord is claiming $500.00 to repaint a wall, and $1,508.00 to replace the carpet.
- 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”).
- To succeed with a claim for damage the landlord must prove that damage 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.
- Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
- Where the damage is careless, and occurs after 27 August 2019, section 49B of the Act 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) of the Act.
- 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) of the Act. 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) of the Act.
- 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) of the Act.
- 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.
- In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord.
- In awarding compensation for damage, the Tribunal must also consider betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful
- The walls were undamaged, and the carpet unstained at the commencement of the tenancy. The landlord has produced an invoice for the carpet, indicating that it was just over a year old at the commencement of the tenancy. The landlord states that the walls had been repainted around the same time.
- The tenant does not dispute that the damage to the wall occurred during the tenancy. The tenant stated, believing they had to vacate by midday, that they had felt rushed, that the damage had occurred moving a bed from upstairs. I am satisfied that the damage occurred during the tenancy, is more than fair wear and tear, and more likely than not the result of carelessness. The tenant attempted to repair the damage. While they intended to sand and repaint the area they ran out of time.
- The landlord states that the paint on the wall could not be matched and that the entire wall required repainting. The photograph of the damage is close up and it is therefore difficult to accurately determine the size of the damaged area or the wall. There is also no quote or invoice produced. I award the landlord compensation of $300.00.
- The landlord has produced a photograph of a small reddish stain in the lounge / dining area close to the kitchen, claiming it is ink or nail polish.
- There is a dispute as to the size of the stain. The tenant describes it as a “dot.” The landlord disagrees stating the stain is about 1cm in diameter. Also shown in the photograph of the stain is a foot, which can be used as a reference. My assessment is that the stain is approximately 0.8 cm in diameter.
- The landlord states that the stain is in an area where there was no furniture, though small, it was clearly obvious upon entering the property. The tenant denies that the stain was clearly obvious, and that they only discovered the presence of the stain at the end of the tenancy, and as with the wall damage, had run out of time to address the matter.
- The landlord state they used “chemicals” but were unable to remove the stain. There has been no attempt to remove the stain professionally. The tenant states that they could have used chemicals to remove the stain with minimal cost and questioned the type of “chemicals” used by the landlord.
- The landlord is seeking compensation of $1,508.00. They have reached this figure by using the previous invoice to estimate the cost of replacing the carpet in the lounge / dining room only.
- Compensatory damages aim to put the losing party in a position they would have been in had the agreement been fulfilled. This is however subject to considerations of reasonableness and proportionality. In this case there was no attempt to professionally remove the stain, which is very small. The property is being used for rental purposes. In my view replacing the entire carpet in the area appears a disproportionate response. I award the landlord compensation of $150.00.
- Having breached the terms of the agreement, by ending the fixed term without the written agreement from the landlord, the tenant is liable for reasonably foreseeable losses, such as lost rent and costs associated with reletting the property. There is an obligation on the landlord to mitigate loss, and in this case, they immediately offered the property for rent. On 14 February 2023, the landlord sent the tenant an email outlining resolution, which included the tenant being liable for rent until a new tenancy was entered, advertising costs of $250.00, travel of $312.50, and time costs of $900.00.
- The landlord is entitled to claim rent until the commencement of the new tenancy. Although, the landlord has not produced a new tenancy agreement and cannot specify exactly when they entered into a new agreement, they estimate it was about two and a half weeks after 25 February 2023. On that basis they claim rent of $1,590.00. The landlord resides in [City 2] and travels to [City 1] for viewings with prospective tenants. The tenant questioned why they should be liable for travel costs on the basis it was not a cost of reletting reasonably contemplated by the parties at the commencement of the tenancy. I agree. In this case I award the landlord two weeks rent of $1,060.00 and the advertising costs of $250.00, making no award for travel costs or time. Costs
- Under Section 102 (4) the Tribunal has a discretion to award an applicant who has been partly successful reimbursement of their filing fee. In this case both landlord, and tenant have been partly successful. As ordering reimbursement of the filing fee to one party would be cancelled out by the award to the other, I decline to make any order. Suppression
- Both the landlord and tenant seek name suppression.
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- While neither party has been wholly successful, overall, I consider that both have been substantially successful either bringing or defending the claims made. On that basis I order suppression of both party’s names and the address of the property.