What was the outcome of Tenancy Tribunal case 4518619?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4518619?

Property Damage: $100.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Bedroom Walls: $250.00 awarded to landlord; Removing Paint From Driveway: $250.00 awarded to landlord; Property Damage: $250.00 awarded to landlord; Property Damage: $250.00 awarded to landlord; Property Damage: $1,167.25 awarded to landlord

What type of tenancy dispute was case 4518619?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4518619?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9386274-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4518619?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4518619?

Property Damage: $100.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Bedroom Walls: $250.00 awarded to landlord; Removing Paint From Driveway: $250.00 awarded to landlord; Property Damage: $250.00 awarded to landlord; Property Damage: $250.00 awarded to landlord; Property Damage: $1,167.25 awarded to landlord

What type of tenancy dispute was case 4518619?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4518619?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9386274-Tribunal_Order.pdf.

102 York Avenue, Greenmeadows, Napier 4112 Tenancy Tribunal Case 4518619 — Property damage

Claims and awards in Tenancy Tribunal application 4518619 — net $1,567.25 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Bedroom walls	$250.00		Repairs: Bedroom walls
Repairs: Removing paint from driveway	$250.00		Repairs: Removing paint from driveway
Repairs: Repairing damaged gates	$1,167.25		Repairs: Repairing damaged gates
Repairs: Repairing damaged air-conditioning unit	$250.00		Repairs: Repairing damaged air-conditioning unit
Repairs: Repairing damaged fence	$250.00		Repairs: Repairing damaged fence
Exemplary damages: Failure to lodge the bond		$500.00	Failure to lodge the bond
Exemplary damages: Failure to appoint an agent		$100.00	Failure to appoint an agent
Total award	$2,167.25	$600.00
Net award	$1,567.25
Total payable by Tenant to Landlord	$1,567.25

Claims and awards in Tenancy Tribunal application 4518619 — net $1,567.25 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Bedroom walls	$250.00		Repairs: Bedroom walls
Repairs: Removing paint from driveway	$250.00		Repairs: Removing paint from driveway
Repairs: Repairing damaged gates	$1,167.25		Repairs: Repairing damaged gates
Repairs: Repairing damaged air-conditioning unit	$250.00		Repairs: Repairing damaged air-conditioning unit
Repairs: Repairing damaged fence	$250.00		Repairs: Repairing damaged fence
Exemplary damages: Failure to lodge the bond		$500.00	Failure to lodge the bond
Exemplary damages: Failure to appoint an agent		$100.00	Failure to appoint an agent
Total award	$2,167.25	$600.00
Net award	$1,567.25
Total payable by Tenant to Landlord	$1,567.25

Order

No suppression orders apply around publication of this decision.
Bruce Husband, Johanna Husband, and Colin White as trustees for the BP & JL Husband Family Trust must pay Ashley Tyson and Matthew Gomm $1,132.75 immediately.

Reasons

Both parties attended the hearing which was held by teleconference.
The Tribunal must consider an application filed by the both the tenants and landlords, and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
When this tenancy ended the landlord was disappointed with the state that the premises were left in and unilaterally determined that they would not refund the bond to the tenants. Whilst some of the landlord’s claims are fair and reasonable and compensation has been awarded herein, the landlord could have taken simple actions to prevent the problems that have arisen, including but not limited to: a. formally appointing an ‘active’ agent to represent their interests while they resided in Australia; b. competing a property inspection together with the tenants at the start of the tenancy; c. lodging the bond with the Bond Centre; d. carrying out regular inspections of the property to make sure that it had been kept reasonably clean and tidy and to identify repairs and maintenance; and e. inspecting the property together with the tenants at the end of the tenancy.
The relationship with the tenants completely fell apart at the end of the tenancy and instead of completing the simple actions above, the landlord laid claim to the tenant’s bond without proper and professional communication with the tenants.

TENANTS CLAIMS

Did the landlord fail to lodge the bond with the Bond Centre?

The tenants claim the landlord has not lodged the bond with the Bond Centre.
The landlord agrees that the bond was not lodged with the Bond Centre. They state that they received the bond late from the tenants and that they had a lot of personal stuff going on at the time and it was not their priority.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) RTA
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 RTA.
In this case there is no dispute that the bond was not lodged with the Bond Centre. I find that the landlord has committed an unlawful 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) RTA.
Taking into account the section 109 factors, I consider that exemplary damages should be ordered. While I accept the landlords evidence that they had received the bond late and has personal stuff going on at the time, ultimately the obligation is on the landlord to lodge the bond, and from what I can understand from the landlords, they did not prioritise it. The bond has not been lodged, which I consider would fall within the intentional category. The effect of the unlawful act is that the tenants bond has not been lodged with the Bond Centre as required by law. There is a strong interest for tenants and landlords that the bond system be robust, and that also translates into a strong public interest. I consider it would be just to make an order in this case.
The maximum level of exemplary damages which can be ordered for a failure of the landlords duty to lodge the bond, is $1,500.00. In this case I have ordered one third of the maximum, I cannot see any aggravating factors that would require a higher, or lower order.

Did the landlord fail to appoint an agent?

The tenants claims the landlord lived overseas for the duration of the tenancy and did not appoint an agent.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) RTA
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 16A(6) and Schedule 1A RTA.
The landlord claims that a tenancy agreement was completed at the start of the tenancy which included a reference to the appointment of the mother of one of the landlord representatives as the agent. The landlord claims that they had regular contact with the tenant directly despite the appointment of their agent and that the tenant could have also contacted the father of one of the other landlord representatives.
The tenant claims that they had no contact with the landlord’s agent throughout the entire tenancy and that a more active agent could have assisted with the issues that arose during the tenancy and at the end of the tenancy.
The intention of section 16 RTA is to ensure a tenant has a local agent capable of addressing issues as they arise.
Whilst the landlord claims an agent was appointed, there is no evidence supporting the appointment e.g., there is no tenancy agreement noting the appointment and no evidence of any correspondence between the tenant and the alleged agent.
Therefore, I consider it is more likely than not that the landlord did not appoint an agent. As the landlord has not appointed an agent, they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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) RTA.
In this instance, the breach was intentional because the landlord failed to appoint or utilise an agent for the entire duration of the tenancy. I consider that the effect of the act was not significant as the landlord’s remained in contact with the tenants by email and Facebook messenger. There is a legitimate public interest in addressing the problem that section 16A was intended to target, which was ‘absentee’ landlords, based overseas, that tenants were not able to contact easily. The RTA came into law in 1987. Modern means of communication have significantly mitigated this problem. Having regard to these factors my finding is that it is appropriate to make an award of exemplary damages, but at a low level. Accordingly, I have awarded $100.00. Did the landlord breach the tenant’s right to quiet enjoyment?
A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See section 38(2) RTA.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenants view the complaints by the neighbours throughout the tenancy to be a breach of their quiet enjoyment of the premises. They say that the neighbours were constantly watching them, yelling at them, and throwing stuff at their dogs. They say that it became tiresome. The tenants also say that the prospective tenant of the property sent them abusive messages.
Whilst I accept that the tenants may have been uncomfortable with the interactions with the neighbours and the prospective tenant, I am not satisfied that the evidence has established that the landlord breached the tenants’ quiet enjoyment of the premises, and certainly not to the extent of harassment.
Furthermore, the landlord was not responsible for the difficulties between the tenants and their neighbours, and the evidence does not suggest the neighbours were in any sense acting as the landlord’s agent.
For those reasons the tenant’s claim is dismissed.

LANDLORD CLAIMS

Did the tenant comply with their obligations at the end of the tenancy to return the premises in a reasonably clean and tidy condition?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy. See section 40(1)(c) RTA.
It is important to note that the RTA does not require the premises to be provided / returned in an immaculate condition, only in a reasonably clean and tidy state. There is no scientific way to determine what is ‘reasonably’ clean and tidy, what is required is for the Tribunal to evaluate the evidence available (particularly photographs presented), and then to determine whether the premises would be reasonably clean.
It is also relevant to note, that the onus for establishing the claim, sits with the person making it. If the landlord is seeking to recover costs for cleaning, it is the landlord who must prove that the tenant has breached their obligations under the RTA with how the premises were returned at the end of the tenancy. If the landlord does not establish a breach to the balance of probability, then their claim will be dismissed
The landlord claims that the tenant did not leave the premises reasonably clean and tidy. The landlord seeks professional cleaning costs, including some carpet cleaning. The landlord referred to six photographs included in their submission of carpets (2), the wall (2) and a bathroom (2).
The landlord provided invoices for carpet cleaning and a full interior clean in support of their claim following a direction from me for the same at the hearing. The landlord provided further photographs following the hearing, but these have not been considered as it is not appropriate for the Tribunal to accept new evidence after the hearing where no direction for further submissions of photographs was made.
The tenant disputed the landlord’s claim and provides multiple photographs in their submission of throughout the premises. The tenant also provided evidence of an exchange with the landlord where they requested the opportunity to return to clean the bathroom area that had been missed and the landlord declined the offer.
I have considered the photographs provided by the landlord and tenant. While I accept there are some isolated areas where the premises could have been returned in a better condition, overall, I consider the premises were returned in a reasonably clean and tidy state. There was one image from the landlord of a yellow mark on a wall, but it is not possible to tell if this was caused by the tenant in the absence of an entry inspection report and photographs. Therefore, this claim has not been established, so must be dismissed.

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.
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.
In response to a direction from me at the hearing, the landlord confirmed and provided evidence that their insurance did not pay out for the damage. Damage to the walls from the removal of wallpaper
The landlord claimed the tenants poorly installed wallpaper in two bedrooms which were intended to be feature walls. The landlord acknowledges that they approved the wallpaper installation by the tenants, but they had assumed it would have been done to a higher standard. The tenant removed one of the feature walls but not the other. The landlord provided photographs of the feature walls and the damage from one of the walls where the wallpaper had been removed.
The landlord stated that the walls had not been fixed and that the sum claimed was $750.00, being 50% of the estimate provided by an insurance assessor to remove the wallpaper and repaint the walls.
In addition to the damage provisions in the RTA, section 42 RTA deals with the removal of tenant fixtures. Whilst the wallpaper was applied with the landlords’ prior consent, section 42(6) RTA provides that where removal of a fixture causes damage, tenants are liable for the reasonable cost of repairing the damage. The claim is proved.
Whilst the landlord has not completed the repair or established the value of the loss, a nominal sum of $250.00 is awarded to recognise that the tenants have breached their obligations and have carelessly caused damage for which they are liable. Paint damage on the driveway
The landlord claims that the tenant painted something on the driveway which has left a rectangular paint stain on the concrete driveway. The landlord claims $250.00 towards the cost to clean it based on the estimate provided by an insurance assessor.
The tenant admitted causing the damage and stated that they were willing to bear the cost if a receipt or invoice was provided.
Whilst the landlord has not completed the repair or established the value of the loss, a nominal sum of $250.00 is awarded to recognise that the tenants have breached their obligations and have carelessly caused damage for which they are liable. Even if the stain can be removed relatively easily it will require some labour and cleaning products. Damage to the driveway gates
The landlord claims that the tenant damaged the driveway gates by attaching corrugated iron to the gates using approximately 30 screws. The landlord claims $1,167.25 based on a quotation provided by Pacific Outdoor Solutions to repair the gates.
The tenant admitted causing the damage and stated that they were willing to bear the cost if a receipt or invoice was provided.
Whilst the landlord has not completed the repair, in this case, the landlord has obtained a quotation for the repair work. The full quotation amount is awarded to recognise that the tenants have breached their obligations and have carelessly caused damage for which they are liable. Damage to the air-conditioning unit
The landlord claims the cost of damage to the external air conditioning. The landlord claims $1,250.00 being 50% of a quotation provided by Active Refrigeration.
The tenant admitted that small dogs visiting the premises likely caused the damage and stated that they were willing to bear the cost if a receipt or invoice was provided.
Whilst the landlord has not completed the repair, in this case, the landlord has obtained a quotation for the replacement on the basis that the model of heat pump is no longer in production. A tenant should not be liable for full replacement when it is just the parts that require replacement. A nominal sum of $250.00 is awarded to recognise that the tenants have breached their obligations and have carelessly caused damage for which they are liable. Damage to the driveway fence
The landlord claims the cost of damage to the corner of the fence in the driveway. The landlord claims a contribution of $500.00 based on the estimate provided by an insurance assessor.
The tenant admitted causing the damage and stated that they were willing to bear the cost if a receipt or invoice was provided.
Whilst the landlord has not completed the repair or established the value of the loss, a nominal sum of $250.00 is awarded to recognise that the tenants have breached their obligations and have carelessly caused damage for which they are liable. Damage to the outside grassed area.
The landlord claims the cost of damage to a grassed area on the basis that the tenant’s dogs killed the grass. The landlord claims $250.00 based on a discussion that they have had with the landscaper that completed the landscaping when the landlord lived at the property prior.
The tenant claims that the landlord knew that they had two giant breed dogs that would be running around outside, and that grass had died due to the unpredictable weather, in particular the wet winter.
As no photographs have been provided of the state of the grass at the start of the tenancy, I am not able to determine whether the damage occurred during the tenancy. For that reason, in this particular case, I am dismissing the landlord’s claim. Filing Fee
Both parties have been partly successful with their claims. No order is made for either to pay the other the filing fee. Suppression
The tenant sought a suppression order.
Suppression is not ordered because the tenants were not substantially or wholly successful with their claim. T Lee-Lewis 19 September 2023

Tenancy Tribunal case 4518619 — Property damage at 102 York Avenue, Greenmeadows, Napier 4112

At a glance

Tenancy Tribunal case 4518619 — Property damage at 102 York Avenue, Greenmeadows, Napier 4112

At a glance

Award balance

Claims & awards

Order

Reasons

TENANTS CLAIMS

Did the landlord fail to lodge the bond with the Bond Centre?

Did the landlord fail to appoint an agent?

LANDLORD CLAIMS

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

TENANTS CLAIMS

Did the landlord fail to lodge the bond with the Bond Centre?

Did the landlord fail to appoint an agent?

LANDLORD CLAIMS

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions