What was Tenancy Tribunal case 4511897 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 4511897?

Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4511897?

The dispute type was not classified.

Where can I read the official tribunal order for case 4511897?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9249305-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4511897 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 4511897?

Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4511897?

The dispute type was not classified.

Where can I read the official tribunal order for case 4511897?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9249305-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4511897 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4511897 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$20.44
Bond	$2,600.00
Total payable by Landlord to Tenant	$20.44

Claims and awards in Tenancy Tribunal application 4511897 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$20.44
Bond	$2,600.00
Total payable by Landlord to Tenant	$20.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Rentsmart Nz Limited As Agent For Bay Cities Trustee Company No.2 Ltd must pay [The tenant/s] $20.44 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,600.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing.
The tenant appeared by audio visual link and the landlord’s property manager attended with a support person.
The property manager appeared with a significant bundle of documentation. The hearing was adjourned for 30 minutes to allow the tenant an opportunity to digest the evidence bundle. The tenant was given the opportunity to seek an adjournment on the basis of the late submission of evidence and declined the option. The hearing proceeding accordingly.
This matter consists of a tenant application for its bond and a landlord application for $1,400.00 compensation for replacement of carpet (being the excess). The landlord’s position is that the tenant’s cats soiled the carpet and the attempts to clean it did not work and it now needs to be replaced.
The tenant also claims that the landlord failed to provide and maintain the premises in a reasonable state of repair following a water leak incident. The tenant seeks compensation.
There was also a dispute between the parties as to the exit tenancy clean but those matters have been resolved with the costs distributed between tenant, landlord and property manager.
The tenancy began on 26 February 2021 and ended on 8 December 2022. Burden of proof
The applicant has the burden to prove their claim. The standard of proof required is the usual civil standard of ‘on the balance of probabilities. Put another way, they must persuade me that what they say is more likely than not to be the case.
I do not need to be completely certain, but I need to be more certain than uncertain. I must weigh all the evidence provided to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all evidence.
Whilst I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.

Should the tenant compensate the landlord for the damage to the carpets?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy. See section 40(1)(e)(iii) Residential Tenancies Act 1986 (RTA).
A tenant must also not damage a tenancy premises. The 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.
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.
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 tenant was permitted to have two additional cats at the premises during the tenancy on the basis that the tenant would remedy any issues arising as a result of the cats. The carpets were professionally cleaned at the end of the tenancy on or around 8 December 2023. The premises were shut up during Christmas and when the owner and builders returned in the New Year it was reported that there was a strong smell of cat urine which needed to be remedied. A carpet cleaner from [redacted] attended on or around 1 March 2023 to inspect the property and reported in their professional opinion that there was a strong animal urine odour.
The landlord arranged for another carpet cleaning company [redacted] to visit the premises to consider whether the smell could be eradicated through further professional cleaning and [redacted] advised that it would be unlikely the smell could be removed if the urine had seeped into the underlay. The landlord arranged for the carpet to be replaced and claims the insurance excess from the tenant for the carpet replacement in the lounge area only. The landlord says that the smell was caused during the tenancy by the tenant’s cats.
The tenant claims that the smell was not there when they vacated. The tenant says that the issue was only brought to their attention 11 weeks after the end of the tenancy and that the smell could also be from mould resulting from the water leak incident that occurred during the tenancy. The tenant submitted videos showing stains on the carpets after a pipe burst in mid-May and the colour of the water (a yellowish/brownish colour) of the water leaking in the premises.
I have considered all the evidence available to me and I accept that the carpets were damaged, most likely by cat urine during the tenancy. There is no dispute that the tenant had two cats in the house and there is ample evidence from the landlord, the builder and two carpet cleaning companies that the odour was likely cat urine.
I note that the issue was raised some time after the end of the tenancy. There is evidence of issues with regard to the bond being finalised in early February 2023. The landlord then emailed the tenant in late February regarding the concerns over the cat odour. I consider that this is a situation where, despite the post- tenancy process finalising in early February that it is appropriate to revisit the agreement with regard to the bond.
Accordingly, I find the tenant responsible for the damage to the carpet which I consider more likely than not to have occurred during the tenancy.
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, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. The property manager advised that they considered the carpet was approximately 8 years old. This is corroborated by one of the carpet cleaning invoices. Based on a ‘usual’ life expectancy of 12 years for carpet in rented properties, I have applied depreciation of 67% to the insurance excess claimed.
The amount ordered is proved. Did the landlord breach its obligation to provide and maintain the premises in a reasonable state of repair?
Under s 45 of the RTA, a landlord must provide and maintain the premises in a reasonable state of repair. A breach of this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (s 45(1A) and Schedule 1A RTA.
The Tribunal may award exemplary damages where a party has committed an unlawful act intentionally and 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 (s 109(3) RTA).
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. Further, a tenant must notify the landlord as soon as possible after discovery of any damage to the premises and the need for repair. The landlord's obligation is to then repair within a reasonable time after knowledge of the need for repair.
It is not disputed that the premises were subject to a water leak over time causing significant damage. The tenant raised initial concerns after noticing water dripping from the ceiling in early May 2022. The property manager sent a builder to look at the issue, but the root cause was not discovered. A week later, the tenant emailed the property manager to advise the issue was getting worse with water streaming down the exterior of the building and heavy condensation throughout the premises. The landlord then arranged for a building inspector to attend the premises and eventually a plumber identified a burst pipe on 25 th May 2022. On the same day that the burst pipe was discovered, the property manager arranged for an electrician to attend the premises to check the electricity and gas were working safely.
The damage to the premises was significant including dampness and mould throughout. The property manager’s evidence that the repair costs have been in excess of $20,000.00. The work was not carried out until the tenant vacated the premises.
The tenant claims compensation of $955.50 based on a 5% rent reduction from May 2022 when the issue commenced through to when the tenant vacated the premises
The property manager explained that the delays in carrying out the work was due to the inability to get a builder in [location] due to the demand for work after the cyclone in February. The property manager confirmed that she was still working on getting compensation for the tenant from the landlord’s insurance company. The property manager provided evidence of correspondence with the insurance assessor where the inconvenience to the tenant is acknowledged: “In my opinion the tenants have been living in a substandard property for the duration after the event and that should be compensated.”
The property manager claims that the tenant was compensated by the landlord as their rent did not increase during the tenancy and a gas bill was reimbursed after it increased in an attempt to dry the premises.
Having considered the evidence in detail, I consider that the landlord was responsive to the issue with the leak and the delays were due to trades being unable to identify the problem and then to carry out the work once the problem was identified. On that basis, exemplary damages cannot be awarded.
However, although the water leaking incident did not result from any breach by the landlord, there is a general principle that rent abates where premises become wholly or partially uninhabitable (s 59(4) RTA). I consider that the tenant’s occupancy of the house as a whole was significantly disturbed and inconvenienced by the damage caused. I find that the tenant’s claim for compensation of $955.50 for the period of the disturbance is reasonable in these circumstances (based on a 5% rent reduction during the period).
It is not appropriate for compensation payable to a tenant to be dependent on an insurance company responding to a landlord’s claim. Filing fee
As both parties have been partially successful in their applications it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall. 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. The tenant seeks suppression. The tenant is not automatically entitled to name suppression under s 95A(1) RTA, as her claim was not ‘substantially’ successful.
I have however, formed the view that it is appropriate to order name suppression for the parties under s 95A(4) RTA. I accept that this has been a challenging tenancy, given the number of issues that have arisen. I find that the tenant’s interests outweigh the public interest, and I have ordered suppression of the tenant’s name and identifying details. T Lee-Lewis 2 August 2023

Tenancy Tribunal case 4511897 — Tenancy dispute

At a glance

Tenancy Tribunal case 4511897 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenant compensate the landlord for the damage to the carpets?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenant compensate the landlord for the damage to the carpets?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions