What was Tenancy Tribunal case 4552509 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 4552509?

Filing Fee: $20.44 awarded to landlord; Lawns and Garden Work: $250.00 awarded to landlord; Property Damage: $550.00 awarded to landlord; Walls: $800.00 awarded to landlord

What type of tenancy dispute was case 4552509?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4552509?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9416753-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4552509 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 4552509?

Filing Fee: $20.44 awarded to landlord; Lawns and Garden Work: $250.00 awarded to landlord; Property Damage: $550.00 awarded to landlord; Walls: $800.00 awarded to landlord

What type of tenancy dispute was case 4552509?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4552509?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9416753-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4552509 — Property damage

Claims and awards in Tenancy Tribunal application 4552509. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Walls	$800.00	Repairs: Walls
Fridge Insurance Excess	$550.00	Fridge Insurance Excess
Lawns and Garden work	$250.00	Lawns and Garden work
Filing fee reimbursement	$20.44	Filing fee reimbursement

Claims and awards in Tenancy Tribunal application 4552509. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Walls	$800.00	Repairs: Walls
Fridge Insurance Excess	$550.00	Fridge Insurance Excess
Lawns and Garden work	$250.00	Lawns and Garden work
Filing fee reimbursement	$20.44	Filing fee reimbursement

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
The Bond Centre is to pay the bond of $1,620.44 ([Bond number suppressed]) to Home And Co Property Management Limited As Agent For Mark Tyrrell Family Trust immediately. The Bond Centre is to pay the bond of $1,299.56 ([Bond number suppressed]) to [The tenant/s] immediately.
All other applications are dismissed.

Reasons

Both parties attended the hearing on 14 September 2023.
The tenancy relates to a property at [Tenancy address suppressed] (“the premises”).
The tenancy commenced on 28 January 2019 and ended on 28 March 2023
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. General Law
The party bringing the claim is required to prove their claim to the civil standard called the “balance of probabilities.” The point where I accept that it is more likely than not that their version of events is correct. In crude mathematical terms, this might best be described as meaning that the party whose claim has a probability threshold of 51% will meet the standard of proof. If they only reach 50% or less, then as a matter of law their claim must fail.
I do not need to be completely certain, but I need to be more certain than uncertain. I must consider all the evidence presented, including oral evidence at the hearing. I have to consider all that evidence in coming to a decision on whether something is more likely than not.
In this matter, the onus or job of proving the claim falls on each of the parties with regards to their respective claims. The onus of proving the tenants’ claim is on the tenant. The onus of proving the landlord claim is on the landlord. There is no dispute that the bond remains with the Bond Centre. Whether the bond should be released to the tenant in full or in part will be dependent on the success or otherwise of the landlord claims.
Just because I may find for one party or the other on a particular issue, does not necessarily mean that the unsuccessful party is wrong. It merely means that on the evidence presented, I was not sufficiently certain to make an order.
The Tribunal is not required to set out all of the evidence proffered by the parties at the hearing, but they can be assured that it has been taken into account in reaching this decision.

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. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
The landlord says that the tenant did not leave the gardens in a reasonably tidy state at the end of the tenancy.
The legal obligation on the tenant is to leave the gardens in a condition that a reasonable bystander would consider tidy. It does not have to be perfect or prize winning, but not such a low standard to suggest that the property is unoccupied, a health hazard or a fire risk. The standard would not have been met if lawns are not mown. The standard is reasonably tidy. That does not require the gardens to be in the same condition as at the start of the tenancy.
The tenant says that the gardens had just been planted at the commencement of the tenancy. The tenant says that they have carried out extensive maintenance of the gardens during the course of the tenancy, including work on the irrigation system and the addition of garden mulch.
In approximately 2020, the tenant says that large trees on a neighbouring property were felled. The tenant says that this has resulted in a bare patch of garden area. That area has required further maintenance by the tenant.
I have reviewed the photos provided. The photos were taken after the tenant had carried out garden work following the end of the tenancy. I consider that some work would have been required by the tenant to bring the garden to the “reasonably tidy” standard. I do not consider that the full amount of work claimed for by the landlord ($457.70 with 8 hours work) would have been needed to achieve that standard. Taking those factors into account, I find that a reasonable contribution from the tenant to bring the gardens to the necessary standard would be $250.00.
The landlord says that they had been unable to find the letterbox key at the end of the tenancy, despite a search of the premises. The landlord claims $7.00 for a replacement key.
The tenant says that they were provided with one key at the start of the tenancy. As they never intended to use the letterbox, the key was returned to the landlord property manager at the commencement of the tenancy.
The tenancy lasted in excess of four years. The property manager who dealt with the premises at the commencement of the tenancy did not attend the hearing. The onus or burden of proving this claim is on the landlord. On the limited evidence provided, I am not persuaded that it is more likely than not that the key had not been returned by the tenant. The claim is accordingly 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 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 “insured against destruction or damage”, 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. The landlord is insured. The policy carries an excess of $550.00 on each and every claim.
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: Fridge
The Fridge at the premises was new at the commencement of the tenancy. The landlord says that the lining of the fridge has been cracked during the tenancy. Photos of the damage were provided. The landlord has received advice from the manufacturer that it is not possible to repair the fridge. The cost of a replacement fridge is $2,099.00.
The tenant says that the fridge developed a small crack early in the tenancy. The tenant says that they informed the property manager of the crack at the time and thought that it may have been a fault with the fridge, although no evidence to support this was provided. They say that the property manager told them that no action would be taken as the crack did not stop the fridge from being operational. The crack has become larger over the term of the tenancy. The landlord said that they had no record of this conversation with the tenants in their property notes.
I accept that the landlord has proven that the damage occurred during the tenancy.
Having looked at the photos of the fridge provided, I do not consider that the crack could have been caused as a result of fair wear and tear. That being so, the burden of proof falls on the tenant to show that the damage was not caused carelessly. I record that there is no suggestion that the damage was caused intentionally.
The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. Simply asserting that it may have been a fault inherent in the fridge is not in my view sufficient, without the production of supporting evidence.
Having accepted that the tenant is liable for the damage, I move onto the issue of the quantum of the damage.
The landlord has insurance for tenant damage. The landlord made a claim for the damage to the fridge under their insurance policy. The landlord provided a letter from their insurer simply stating that the claim was declined. No reasons were given in that letter. In this matter, I consider the following to be relevant; • The landlord had insurance cover. • The tenant has been notified of the existence of that cover in the tenancy agreement. • The tenant has been unable to disprove liability.
I find that as the landlord had insurance cover for tenant damage, that the tenant liability for the fridge is limited to the insurance excess amount of $550.00. Walls
The tenants were the first occupants of the premises.
The landlord says that a number of walls were damaged during the course of the tenancy. In particular, damage was caused to an area where the tenants had installed a baby gate and also where a “height chart” had been attached to a wall. Damage was caused to the underlying wall and paint when the chart was removed.
The landlord provided photos of the damaged walls. It was accepted by the landlord that a degree of fair wear and tear damage is inevitable over a four year tenancy.
Marks were also noted in the bedroom.
The tenant has attempted to carry out some repairs of the damaged areas, but the landlord says that the paint colour used has made these repair attempts very noticeable.
Other repairs were required in the living room, hallway and kitchen.
The landlord says that they gave the tenant time after the end of the tenancy to complete repairs, but that after eight days had gone by, they instructed their own contractor. The landlord provided an invoice for $1,380.00 for the repairs.
The tenant accepted that they may be liable for the limited damage caused by the installation of the baby gate. The tenant otherwise says that the damage claims are a result of fair wear and tear.
The landlord very fairly accepts that full walls have been painted by their contractor and that this has resulted in a degree of betterment. 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.
Having reviewed the damage in the photos and the evidence provided. I find as follows; • Damage has been caused by the tenants . • That damage is not intentional. • The damage is many areas is more than fair wear and tear, and the tenant has not disproved liability for the damage. • The work carried out has resulted in the landlord having freshly painted wall and not walls that have endured four years of fair wear and tear. 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.
I consider that a reasonable contribution to the painting costs by the tenant would be $800.00.
The amounts ordered are proven.
As [The applicant/s] has substantially succeeded with the claim, I have ordered the tenant to reimburse the filing fee.
The tenant has applied for name suppression. The tenant has achieved a degree of success in this matter. I do not consider that there is any public interest in the publication of this order and suppression of the tenant name and details is ordered.

Tenancy Tribunal case 4552509 — Property damage

At a glance

Tenancy Tribunal case 4552509 — Property damage

At a glance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions