What was the outcome of Tenancy Tribunal case 4536678?

The tribunal order states: Michael Ronald Wilson must pay Oxygen.Co.Nz Limited As Agent For David

How much money was awarded in case 4536678?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4536678?

The primary dispute was Rent arrears. Related themes: Cleanliness, Property damage.

Where can I read the official tribunal order for case 4536678?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9537968-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4536678?

The tribunal order states: Michael Ronald Wilson must pay Oxygen.Co.Nz Limited As Agent For David

How much money was awarded in case 4536678?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4536678?

The primary dispute was Rent arrears. Related themes: Cleanliness, Property damage.

Where can I read the official tribunal order for case 4536678?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9537968-Tenancy_Tribunal_Order.pdf.

7B Utah Grove, Totara Park, Upper Hutt 5018 Tenancy Tribunal Case 4536678 — Rent arrears

Order

Michael Ronald Wilson must pay Oxygen.Co.Nz Limited As Agent For David Murphy $5,131.58 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $161.70 (3327348-014) to Oxygen.Co.Nz Limited As Agent For David Murphy immediately.
No suppression orders apply around publication of this decision.

Reasons

This longstanding tenancy ended by Tribunal order on 19 January 2023 (the possession order). Ms Seales as the property manager for Oxygen.Co.Nz Limited subsequently obtained an eviction warrant which was enforced on 31 January. Ms Seales now seeks rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The process following the eviction warrant execution is relevant to these applications as the invoices claimed stem from that process. Mr Wilson submits that the process was flawed and unreasonable, Ms Seales argues it was necessary.
Ms Seales’ recollection of the process is as follows: a. Following the possession order, she visited on 26 January and was of the view that no steps had been taken by Mr Wilson to vacate. She therefore applied for the eviction warrant. b. On 31 January she attended with the bailiff and locksmith and when Mr Wilson left, she had the locks changed. c. She allowed him access during the days of 2 and 3 February to remove his belongings. d. On 3 February when no discernible steps had been taken to remove belongings and Mr Wilson’s partner would not leave the property, she contacted the Police who served them with trespass notices. He was not allowed any further access to the property. e. At subsequent times Mr Wilson attended the property when he knew he was not allowed, and broke in. f. She arranged movers for the 7 th , 14 th and 15 th of February to remove his belongings which they took to Mr Wilson’s storage unit. g. By the 27 th of February the majority of the belongings had been removed, and anything remaining after that date was disposed of. h. The property was flea bombed on 14 March and cleaned on 21 March.
Mr Wilson’s version of events is as follows: a. The possession order took him by complete surprise, and he did not feel he got a fair hearing. He accepts he did not appeal or apply for a rehearing. b. He tried to find alternative accommodation, but it was extremely difficult. He was even refused emergency housing and, in the end, had to hire a storage unit and stay with a friend. c. He left willingly on the 31 st . He says he had started packing but as he had nowhere to go was feeling extremely bewildered at the time. d. He did take steps on the 2 nd and 3 rd to remove his items however he has a considerable amount of belongings so it was always going to be a time- consuming process. He had resided in the property for over 12 years. e. He requested on 3 February to be able to attend the property over the long weekend (4-6 February) to remove his belongings as he had arranged two trucks and five friends to assist however that was refused by Ms Seales. f. He offered to attend the house and undertake the cleaning and garden maintenance on 16 February, but this was refused.
I consider each claim separately below bearing in mind the “standard of proof” (or the level or evidence required) which is “the balance of probabilities.” Put another way, the landlord as applicant must persuade me that what she says 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 not. In making these decisions, I consider all the evidence presented (including oral testimony) weighing it to decide what is more likely. Certain types of evidence carry more weight, which is also taken into account when weighing all the evidence. I do note that a good part of this case turns on its facts and some of the material facts are in dispute. Therefore, I must decide the facts on the basis of the evidence presented to me. It is impracticable for me to recite all the evidence in detail, and I have not done so unless it is necessary, but the parties should know it has been considered.

How much is owed for rent?

The tenancy ended on 31 January with the eviction warrant being enforced. Accordingly, the last day Mr Wilson had full possession of the house was 30 January. I therefore find him liable for rent arrears to that date. The amount ordered takes into account the previous order of 19 January which directed a part payment of the bond towards the rent arrears at that time.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of a 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) Residential Tenancies Act 1986 (RTA).
Ms Seales seeks compensation for cleaning, removal of belongings, garden work, and rubbish removal as she says Mr Wilson has breached s40 of the RTA. She considers she gave Mr Wilson fair opportunity to attend to the matters himself, however after 3 February felt she could no longer allow him access. She says he was verbally abusive and threatening and had not utilised the opportunities she had already given him (on 2 and 3 February) therefore did not consider it reasonable that he should have any further time.
Mr Wilson disputes that he was abusive. He agrees he was frustrated and that he may have sworn in some conversations but says he was never rude or threatening. He says he wanted fair opportunity to remove his own belongings and attend to his responsibilities pursuant to the RTA, but because he was trespassed on 3 February and Ms Seales ignored his emails, he did not get this opportunity. Removal invoices
Sections 62-62F RTA set out the process to be followed before disposing of any tenant belongings left in the premises at the end of a tenancy. The first step is for the landlord to discharge their obligations in s62(2) and (3) which provide: (2) If the tenant leaves on the premises goods that are neither foodstuffs or perishable goods, the landlord must, immediately after taking possession of the premises, make all reasonable efforts to contact the tenant and to agree with the tenant on a period within which the tenant is to collect the goods. (3) If the landlord is unable to contact the tenant or to agree on a period with the tenant, or if the tenant fails to collect the goods within the agreed period, the landlord must ensure that any personal documents belonging to the tenant are securely stored and must deal with the other goods either: (a) in accordance with section 62A;or (b) by securing them in safe storage and by applying to the Tribunal in accordance with section 62B. Section 62A: (4) If, before the landlord disposes of the goods under subsection (5), the tenant claims the goods and any personal documents belonging to the tenant or claims either the goods or the documents,— (a) the landlord may require the tenant to pay the landlord’s actual and reasonable costs arising out of the storage of the goods; and
I therefore must consider firstly whether Ms Seales made all reasonable efforts to allow Mr Wilson to remove his belongings and secondly whether the invoices claimed are reasonable.
On 31 January following the eviction, Ms Seales sent Mr Wilson an email saying she would provide him with the following: i. Access to the garage until the end of 8 February. ii. Access any day to the house (except Sunday 5 th ) between 8am and
30pm to remove his belongings, he just needed to nominate the days. iii. Advice that anything left in the house after 8 February may be put in storage at his cost.
Three days later she revoked this offer and prohibited him access after 3 February when she requested the Police to trespass him.
Mr Wilson emailed Ms Seales on 3 February asking for a compromise and saying it had been a stressful week. He said he had organised a truck and helpers to move items on the 4 th . He requested time until 4pm on the 7 th to remove his belongings and clean the house. This was declined.
Mr Wilson had been aware from the 19 th that he had to leave the home. Based on the photographic evidence I accept Ms Seales’ submission that by the 31 st he had made no discernible effort to pack up and therefore abide by the possession order. I also accept Mr Wilson’s submission that he was in a state of flux as to where to go.
The photos taken by Ms Seales on the 3 rd do show some packing but there was still plenty to go. I therefore accept the evidence that Mr Wilson had started packing on the 2 nd and 3 rd but had not sufficiently utilised these days to remove his belongings, particularly given he did have his storage unit by this time.
I accept Ms Seales’ submission that dealing with Mr Wilson was extremely difficult. He was clearly considerably upset at the situation. However, I do not find it substantiated in evidence that his request to attend over the long weekend was disingenuous or threatening. In reality he was having to undertake a mammoth effort in packing up his home of 12 years on relatively short notice. He had certainly had 11 days after the possession order to start his packing which he had not done. However, after he was evicted, he did start taking tangible steps.
I do not consider two days, after a tenancy of 12 years, reasonable time to pack up a home, especially one this full of belongings. It took the movers Ms Seales employed much more than that time over the following weeks. Therefore, it was not reasonable to expect him to only have these two days to meet his responsibilities, although he most certainly could have utilised them more fully than he did.
Ms Seales argues she could not allow Mr Wilson extra time because of the way he dealt with her and that he was mucking them around. Mr Wilson denies this and says he knew it would do him a disservice to get angry, and so he did not. In saying that he agrees this was a traumatic time firstly having his tenancy of 12 plus years terminated, then being evicted and then trespassed.
I accept that Mr Wilson’s partner Laurena did refuse to leave the house on the 3 rd and the Police were required to intervene. However, the evidence presented by Ms Seales has not established that Mr Wilson was threatening or abusive to the extent that it was unsafe for her to continue working with him. She has referenced calling the Police multiple times however no corroborating evidence regarding his behaviour has been provided. At this point it is important to reiterate that the onus of proof lies with the landlord as applicant.
Ms Seales does say that they were trying to keep the costs down for Mr Wilson when they employed their movers, however I cannot accept this given she did not allow him to use his own trucks. She also submits that Mr Wilson actually impeded their efforts to clean up the property and whilst I am satisfied that he did attend the property at times he was not permitted to, I do not find it established in evidence that his actions made their tasks more complicated.
Accordingly, I consider it unreasonable of Ms Seales to deny Mr Wilson access over the long weekend given he had arranged trucks and movers for that time. I also do not find her submission that it was a risk to leave the key with him credible. There is no evidence of him previously damaging the property; to the contrary he has provided evidence of emails from her thanking him for taking care of it during the tenancy.
In saying that, Mr Wilson was required to have taken steps earlier to remove his belongings. He was required pursuant to section 40(e)(ii) of the RTA to remove his goods at the end of the tenancy. He knew from the 19 th that the tenancy had ended but did not attempt to abide by the possession order.
I also find it likely that even had Mr Wilson had access over the long weekend that he would not have been able to remove all his belongings within that time given his previous inaction and the extent of his possessions.
Ms Seales has claimed $5,852.35 in total for removing Mr Wilson’s belongings. For the reasons stated above, I do not consider this amount reasonable in light of Mr Wilson’s offer to do some himself. Had Ms Seales honoured her email offer of 31 January, my finding would likely have been different. In making this finding, I take into account section 49 of the RTA which requires the victims of a breach of the tenancy agreement and/or the RTA to mitigate their losses arising from that breach. The duties imposed by sections 49 and 62 effectively required (on the available evidence) Ms Seales to allow Mr Wilson access over the long weekend.
Further, the invoices attribute an hourly rate of $200 for the moving services of the first two companies employed. This appears to be for either two or three men to undertake the work. Mr Wilson has provided evidence of at least one of the companies just putting his items in the truck (not packing or boxing them) and then dumping them in one big pile outside his storage unit. This evidence does not indicate a professional service. I therefore consider an hourly rate of $100 per worker high for this work and not consistent with other commercial rates that the Tribunal sees for work of this nature. The Tribunal is only prepared to award a reasonable amount, meaning an amount not dissimilar to other commercial costs seen.
Having assessed all of the circumstances, I find that compensation of $3,000 for the removal of Mr Wilson’s belongings reasonable.
I note that Mr Wilson has raised concerns over the actions of the movers as he says they did not take care in removing his items and as such some were broken in the move, and some of his items are still missing. I make no findings in this respect as Mr Wilson has not made an application for me to do so, other than reducing the claims which in part reflects the level of service provided. Mr Wilson now has the details of the companies involved in the move so is in a position to raise the issue directly with them should he wish to. Lock change
Mr Wilson says he would have returned the keys if they were requested of him so he does not agree to the invoice for changing the locks. Ms Seales attended the eviction with a locksmith, therefore, whether Mr Wilson was willing to return the keys was redundant as she intended to change the locks regardless. Ms Seales says that Mr Wilson’s attendances at the property after eviction demonstrate why she needed to do this. She says he broke their lock on the garage at least three times and on other occasions entered through a window.
Mr Wilson had made no visible attempt to abide by the possession order nor did he return the keys, he also accepts he broke their lock on one occasion. Accordingly, in the circumstances I find it justified of Ms Seales to change the locks.
Mr Wilson also submits that the cost of $423.20 is excessive and as such the locks must have been replaced with much nicer ones. The amount allocated on the invoice to the lock barrels and keys is $279.45. I also consider this amount high given the overall state of the property, which is in a basic and dated, but reasonable condition. When assessing compensation, I must take into account betterment and depreciation. This is because 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. Therefore, I must consider the age and condition of the locks at the start of the tenancy and their likely useful lifespan.
Accordingly, I award $340 compensation for the lock change which I consider more reasonable in the circumstances. In coming to this finding, I also note that landlords are expected to engage contractors who charge reasonable rates so as to comply with the mitigation expectation 1 as discussed above. Garden work
Ms Seales seeks reimbursement of the $494.50 she was charged in early March to mow the lawns, cut the garden edges, weed, spray and remove some garden structures and items.
Mr Wilson says the garden was in a reasonable condition when he vacated and as such disputes the amount charged.
The photos on the 31 st , being the last day of the tenancy, do show that the lawn had recently been mown, but also that there were some weeds that needed to be sprayed. Accordingly, I find that the gardens were not in a reasonable state at that time, although they were not far off. I also find it reasonable that Mr Wilson’s garden items were disposed of.
I note however that this invoice was incurred in March, over a month after the tenancy had ended. Ms Seales says they had earlier mown the lawns as well for which she has not charged Mr Wilson.
Mr Wilson is not responsible for garden growth after the end of the tenancy but only at the time he vacated. Accordingly, I find it reasonable that Mr Wilson reimburse the landlord $200 in part payment of this invoice to account for the disposal costs of his items and some weed spraying which was his responsibility pursuant to s40(1)(e)(iii) of the RTA. Pests
Ms Seales claims $18.89 being the cost of flea bombs she purchased and set off. She says she did this as in early March another agent said they were attacked by fleas whilst at the property. She says Mr Wilson did have two cats and a dog and as such the fleas were most likely from them.
Mr Wilson says he did not notice any fleas when they were in the property and whilst his dog may have had one or two fleas (he is unsure) it was certainly not enough for an infestation. He does say that had he been allowed back into the property he would have let of a flea bomb as that is standard practice when leaving a property.
Given Mr Wilson had pets in the property I find it more likely than not that the fleas were as a result of them. As he has agreed that he would have taken the 1 Pursuant to s49 of the RTA same action had been allowed access to do so, I consider it reasonable that he reimburse the cost of the flea bombs and make the order as sought. Cleaning
Clearly the property was not left reasonably clean and tidy at the end of the tenancy. It could not have been given Mr Wilson’s belongings remained at that time. The invoice claimed is considerable ($779.70) with the cleaner claiming an hourly rate of $55 per hour and for travel and expenses. In the invoice the cleaner makes comments such as “it looked like the house hasn’t been cleaned in many years”...it wasn’t an ordinary wipe and clean job. It was hard labour and then it still looked we could spend another couple of days there...its my professional opinion that they must have never cleaned.” She also claimed for a service of her industrial vacuum cleaner as she considered that the intensity of the clean may have damaged it.
The clean was undertaken on 21 March. Ms Seales says the delay was due to cleaner unavailability after the belongings had been removed a month earlier however no one was using the house over that time. The carpets were not cleaned as they were subsequently replaced although they were vacuumed extensively.
Mr Wilson disputes that he should have to pay this as he had offered to clean the property but was refused. He also says he should not have to pay for the carpets since they were subsequently replaced.
There is no requirement on landlords to allow tenants access post tenancy to finish cleaning and the tenant responsibility is pursuant to s40(1)(e)(iii) of the RTA that they must leave the premises in a reasonably clean and reasonably tidy condition upon their departure. This circumstance is a little different to the usual as Mr Wilson could not have cleaned prior to his eviction as his belongings were still in place however the responsibility remains.
As Mr Wilson had not cleaned, the landlord was entitled to employ their own cleaner, accordingly he is liable for the reasonable costs of that. However, the property had been left for a number of weeks and Mr Wilson’s offer to clean had been turned down. I also note that no other clean was undertaken prior to the property being re-tenanted (after renovation). Further, the charges for cleaning the carpet and servicing the vacuum were unnecessary given the carpet was removed shortly after.
As such I consider Mr Wilson responsible for the reasonable cleaning costs which I assess at $400.

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 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.
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.
Mr Wilson had installed security cameras in the home and rewired some of the electrics. This was not consented work and had to be remediated by the landlord. I consider this intentional damage and as such find Mr Wilson liable for the repair costs. Other
Mr Wilson raised a concern with the invoices provided by the landlord saying that they did not appear legitimate. I do not however find his concern substantiated in evidence and as such take the concerns no further. Filing fee
Because Oxygen.Co.Nz Limited As Agent For David Murphy has substantially succeeded with the claim I have reimbursed the filing fee. 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. Mr Wilson has applied for suppression however I do not consider he was wholly or substantially successful in his defence, therefore his application is declined. The landlord has not applied for suppression.

Tenancy Tribunal case 4536678 — Rent arrears at 7B Utah Grove, Totara Park, Upper Hutt 5018

Tenancy Tribunal case 4536678 — Rent arrears at 7B Utah Grove, Totara Park, Upper Hutt 5018

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Property management

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Property management