What was the outcome of Tenancy Tribunal case 4551929?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4551929?

Cleaning: $477.25 awarded to landlord; Cleaning: $184.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $980.00 awarded to landlord; Replace Missing Pot: $128.40 awarded to landlord; Rubbish Removal: $305.90 awarded to landlord

What type of tenancy dispute was case 4551929?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4551929?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9389574-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4551929?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4551929?

Cleaning: $477.25 awarded to landlord; Cleaning: $184.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $980.00 awarded to landlord; Replace Missing Pot: $128.40 awarded to landlord; Rubbish Removal: $305.90 awarded to landlord

What type of tenancy dispute was case 4551929?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4551929?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9389574-Tenancy_Tribunal_Order.pdf.

Unit/Flat 3, 8 Tawai Street, Trentham, Upper Hutt 5018 Tenancy Tribunal Case 4551929 — Rent arrears

Claims and awards in Tenancy Tribunal application 4551929 — net $135.99 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$980.00	Rent arrears
Cleaning	$477.25	Cleaning
Rubbish removal	$305.90	Rubbish removal
Cleaning & water blasting exterior path	$184.00	Cleaning & water blasting exterior path
Replace missing pot	$128.40	Replace missing pot
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$135.99
Total payable by Tenant to Landlord	$135.99

Claims and awards in Tenancy Tribunal application 4551929 — net $135.99 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$980.00	Rent arrears
Cleaning	$477.25	Cleaning
Rubbish removal	$305.90	Rubbish removal
Cleaning & water blasting exterior path	$184.00	Cleaning & water blasting exterior path
Replace missing pot	$128.40	Replace missing pot
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$135.99
Total payable by Tenant to Landlord	$135.99

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Brenda Love must pay Taylor Property Plus (2006) Limited As Agent For Logan Edward And Mark McMillan $135.99 immediately, calculated as shown in the table below.
The Bond Centre is to pay the bond of $1,960.00 (3132947-021) to Taylor Property Plus (2006) Limited As Agent For Logan Edward And Mark McMillan immediately.
All other claims are dismissed.

Reasons

The landlord attended two hearings which took place concerning this matter, represented by Mr Taylor as property manager. There was no appearance by the tenant.
The matter was first heard on 10 August 2022. However, I allowed an adjournment to enable the landlord to provide further evidence in support of a claim for repairs to damaged walls and ceilings. The second hearing took place on 6 September 2023.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

The tenancy ended on 6 April 2023. The landlord provided rent records which prove the amount owing at the end of the tenancy.

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

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) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
The following chattels were missing at the end of the tenancy: a large exterior plant pot.
The amounts ordered are proved.

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.
The following damage was caused during the tenancy: Multiple pin holes, screw holes and damage throughout the premises on walls and ceilings as shown in photos produced in evidence. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage which I find is intentional. During the tenancy, the landlord discovered, after an inspection, that the tenant had affixed multiple pins and screws into the walls and ceilings. They asked that the tenant not affix any more items to the walls without the landlord’s permission. The tenant also assured the landlord that she would make good the damage by plastering and painting at the end of the tenancy. The landlord discovered that further holes were made after the initial inspection and the tenant failed to make good the damage at the end of the tenancy.
The owner sold the premises after the tenancy ended without repairing the damage to the walls.
In the decision from the District Court, of Yaowei (Kathleen) Yin v Sammy Jo Frances Waitai [2021] NZDC 23054, Judge Clark considered an appeal from a Tenancy Tribunal decision. In that case Ms Yin was a landlord and she, like the owner in this case, sold the house, and filed claims in the Tenancy Tribunal in relation to damage. The Court would not accept that the claim should be ordered against the tenant, stating: “[19] Ms Yin says the amount of approximate $16,000 she is seeking is based on a quote for painting and wallpapering. The quote was not before me but, in any event, I asked Ms Yin whether this work was undertaken prior to her selling the property. She confirmed it had not. [20] I find then there is no evidence linking any damage caused by Ms Waitai’s son to the need to paint and wallpaper. Furthermore, as Ms Yin did not incur the cost to repair, I dismiss this claim accordingly.”
Such is the case for the landlord here, in the absence of undertaking the work and incurring a loss, there would be no basis to order compensation be paid by the tenant – whether those claims could be proven or not.
However, the owner claims that a reduced sale price for the premises was negotiated on the basis that the purchaser would fix the damage. To that end the owner obtained a verbal estimate for the cost of repairing the damage throughout the house (later recorded in writing) and argues that he accepted a lower price for the premises taking this cost into account. Therefore, he claims $7,475, being the estimated costs of repairing the walls and the loss suffered on the sale price attained for the premises.
The landlord advised that there was evidence available to show that the owners incurred loss on the sale attributable to the damage. As explained above, I adjourned the first hearing in this matter to give the landlord an opportunity to provide that evidence. This was presented by Mr Taylor at the second hearing. The owners of the premises were not called to give evidence or be questioned.

Is the landlord entitled to recover estimated repair costs/ sale price loss ?

The issue to determine is whether the repairs estimate combined with evidence regarding the sale price for the premises is reliable enough to establish the claim, given that there is no evidence to establish the actual costs of any repair work done.
Mr Taylor said that just prior to the tenancy ending, the tenant advised the property manager that she had no intention of remediating the damaged walls and ceilings. At the time, the premises were on the market for sale and a prospective purchaser was also advised that the damage would not be repaired. That purchaser then made an offer for the premises on 4 April 2023 which was $8,000 below the lower end of the market appraisal range for the property obtained by the owner in early 2023. Before accepting the offer, the owner obtained a verbal estimate of the repair costs in the sum of $6,500 plus GST (a total of $7,475). This estimate was provided on the basis of information supplied to the contractor by the property managers and without the contractor viewing the premises and the damage. The owner was satisfied that he could accept the offer for the premises at $8,000 below the lower end of the market appraisal price range obtained earlier in the year because it was roughly equivalent to the repairs estimate. Subsequently, the property managers asked the contractor to visit the premises and confirm the repair costs estimate. The contractor did so and sent written confirmation on 18 April 2023 which read “Estimate only Sam of $6,500 plus GST. Will be dependent upon amount of damage.”
An estimate is problematic because it is a rough calculation that could change depending on certain factors. In this case, the contractor emphasized that his price would depend upon the amount of damage. In other words, it is conditional upon a further assessment of the damage and what might be required to repair. When asked if the contractor actually viewed the premises, Mr Taylor assured me that he did. Mr Taylor says that the contractor likely expressed his written estimate in this manner because he knew he would not be instructed to do the work so perhaps didn’t want to spend too much time on it.
This raises a concern that the estimate was prepared without paying close attention to the damage and the repair work required. Certainly, the estimate is extremely high and possibly excessive for the work involved. The landlord’s argument is that the estimate gave the owner comfort that the purchase price being offered for the premises was reasonable and acceptable in the circumstances. However, that is not relevant when assessing the tenant’s liability. The tenant is only liable for the repair costs—nothing more and nothing less.
The landlord did not obtain a quote for the work. Unlike an estimate, a quote is a fixed charge that is valid for a certain period. In other words, the price for the work is locked in. It is quite common for contractors to charge substantially different amounts for the same work and often a landlord will obtain 2 or 3 quotes for work to ensure a reasonable price before choosing which one to accept. The Tribunal would usually expect a landlord to obtain more than one quote for a large amount of work, as in this case, if a quote is being relied on for a compensation claim. The same principal applies to estimates.
The market appraisal evidence provided at the hearing shows that the purchase price accepted for the premises was also $8,000 below the lowest end of the appraisal range. The price was offered on the basis that the purchaser knew the repair work would not be done and the purchaser would have to complete the repairs. The purchaser also agreed to waive obtaining a builder’s report. Mr Taylor’s evidence at the hearing was that after the owners received the purchaser’s offer for the property, they then obtained the verbal estimate for the repair costs before accepting the offer. They accepted the offer $8,000 below the lowest end of the appraisal range because they were satisfied that the estimate of the repair costs was in line with this drop. Therefore, it is argued that the landlord acted reasonably in accepting a reduced price which took the repair costs into account, and it is fair to pass on this loss to the tenant.
The appraisals obtained for the premises must be treated with some caution. An appraisal is an estimate based on the opinion of a real estate agent with relevant knowledge and usually with reference to comparable sales. It is often prepared at no cost and provides a rough idea of the possible selling price. It is used as a guide and is not used for a definitive value. Therefore, I cannot be certain that the price accepted by the owner was reduced solely because of the repair costs. The landlord emphasized that comparable properties in the same complex sold for $110,000 more than these premises, but those sales occurred 12 months beforehand in April/May 2022. Furthermore, the sale prices for the neighbouring units in 2022 were $75,000 below the lower end of the appraisal range obtained in early 2022. (This evidence was also provided by the landlord). This shows that appraisal evidence is of limited value for determining loss. These premises sold only $8,000 below the lower end of the appraisal range obtained in early 2023. In summary, the appraisal evidence is of limited value in establishing whether the premises sold at a loss and the amount of the loss.
Clearly, the tenants caused damage in excess of fair wear and tear. The photographic evidence showed numerous pin holes, screw holes and damage to walls and ceilings throughout the premises at the end of the tenancy. The landlord’s email to the tenant on 6 April 2023, following the final inspection, describes the damage in detail with the landlord recording 20 holes in the hallway from pins and screws; 28 pin holes in room 2 and emblems screwed to the door; 27 pin holes across the walls and ceilings, 3 adhesive hooks and paint damage on the wall of room 1; 14 screw holes in the living room ceiling and other holes and scuff marks and wall damage in the kitchen/ living area. The landlord should in the normal course receive compensation for the damage, but the difficulty is to assess the amount. The estimate obtained appears excessive and at the higher end of the spectrum for this work. It has been provided by one contractor and no other estimates or quotes sought. Therefore, it is difficult to know if it is reasonable.
I can accept that the vendor/owner and the purchaser of the premises each separately put their minds to the issue of damage as a factor when negotiating the sale and purchase contract and what each party was prepared to offer and accept. However, there is insufficient evidence that they discussed and agreed on the likely repair costs during the negotiation process. Mr Taylor’s evidence was that the owner only obtained an estimate of costs after receiving the purchaser’s offer and before accepting that offer. The owner was not called to give direct evidence on the point. Despite giving the landlord an opportunity to present further evidence in support of this claim, the further evidence presented does not persuade me that the estimate for the repairs and/or the appraisal evidence can reasonably be relied upon to establish the loss claimed.
Section 85 RTA requires the Tribunal to determine disputes in a fair and expeditious manner, according to the general principles of the law relating to the matter and the substantial merits and justice of the case but the Tribunal is not bound to give effect to strict legal rights or obligations. Accordingly, there is a case for saying if damage has occurred, there must be some loss and it should be compensated. The essential thing is to determine what is appropriate and fair and reasonable between the parties. However, it is difficult to make any fair determination in this case because there is simply not enough evidence for the Tribunal to reasonably assess the scope and cost of repairs and the amount of any loss.
The onus is on the landlord to prove their case on the balance of probabilities and I find that they have not discharged that onus in this case.
For the above reasons, the claim must be dismissed.
As the landlord has mostly succeeded with their claims overall, they are entitled to reimbursement of the filing fee on the application. K Stirling, 2 October 2023

Tenancy Tribunal case 4551929 — Rent arrears at Unit/Flat 3, 8 Tawai Street, Trentham, Upper Hutt 5018

At a glance

Tenancy Tribunal case 4551929 — Rent arrears at Unit/Flat 3, 8 Tawai Street, Trentham, Upper Hutt 5018

At a glance

Award balance

Claims & awards

Dismissed claims

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?

Is the landlord entitled to recover estimated repair costs/ sale price loss ?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

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?

Is the landlord entitled to recover estimated repair costs/ sale price loss ?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions