Tenantcheck Insights · Case study

Tenancy Tribunal case 4568078 — Property damage at Unit/Flat 1L, 21 St Jude, Avondale, Auckland 1026, Avon

Decided 15 Jan 2024 · Published 15 Jan 2024 · Application 4568078

Landlord favoured

Property damage
Cleanliness

View official order on MoJ →Explore similar cases

At a glance

Key facts from the published tribunal order.

Outcome

Landlord favoured

From published order

Location

Auckland

Tribunal region

Adjudicator

M Pollak

Dispute themes

Award balance

Gross awards, any bond applied per the order, and the remaining balance payable.

Gross award: $2,622.89
Bond payment as ordered: −$1,800.00
Total balance for Tenant to pay Landlord: $822.89

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4568078 — net $822.89 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Light bulbs/batteries	$40.00	Light bulbs/batteries
call out for oven- no issue found	$80.50	call out for oven- no issue found
call out for heat pump- no issue found	$150.00	call out for heat pump- no issue found
Cleaning: (incl travel, products and labour	$759.37	Cleaning: (incl travel, products and labour

Order

The Bond Centre is to pay the bond of $1,800.00 (5401673-008) to Ana Maria Merchant immediately.
Min (Vivien) Li must pay Ana Maria Merchant $822.89 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlord has applied for compensation/general damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenant has counterclaimed for compensation, refund of the bond, and reimbursement of the filing fee.

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 replace the light bulbs that were not working at the end of the tenancy.
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 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.
The following damage was caused during the tenancy: a. The bathroom lock was broken and needed to be replaced. Evidence was produced that showed the lock was forced open and broken during the tenancy; b. There was extensive damage done to many of the walls throughout the house from holes being made in the walls to hang things on and to install shelving. These holes were plastered and painted by the tenant’s mother. The plastering was rough and not sanded before being painted and was painted over in a different shade of white to that on the remainder of each wall. The painting was only applied to the areas that had been plastered and left a patchy effect on most of the walls in the house. These walls required replastering, sanding and the entire walls repainting to get rid of the rough and patchy condition the walls were left in at the end of the tenancy;
The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The amounts ordered are proved.
I have considered betterment and depreciation. 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 considered the age and condition of the items at the start of the tenancy and their likely useful lifespan.

Did the landlord fail to repair and maintain the premises?

Section 45 (1)(b) of the RTA states that a landlord must “provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes”.
The tenant alleged that the landlord failed to do so when she failed to address an infestation of bed bugs during the first 31 weeks of the tenancy.
The tenancy commenced on 6 January 2022 and the first time the tenant raised the issue with the landlord was on 24 May 2022. By this time the tenant had already incurred $300.00 of costs for pest control prior to informing the landlord of the issue or giving her the chance to investigate the alleged infestation or to address it in a reasonable time frame.
The landlord’s had a statement from the prior tenant that stated there had been no bedbug or pest issue during his tenancy. The landlord also gave evidence that she and her daughter had done extensive work on the premises prior to the tenant moving in on 6 January 2022 and that she and her daughter had been sitting on the floor and spending considerable time at the property and had not been bitten or experienced any issues with any sort of pests.
Given the significant delay in the tenant raising the issue with the landlord and the fact that she raised the issue only after the landlord had informed her she was going to be billed for the call out costs incurred after she reported a fault with the oven when there was no fault and she had failed to read the instruction manual.
The tenant did not prove her claim for a 31-week 50% rent reduction and reimbursement of the $300.00 pest control costs she incurred on 5 March 2022.
The tenant’s claim was not proven and was dismissed.
The tenant reported issues with the heat pump and oven near the beginning of the tenancy. The landlord promptly called technicians to repair these appliances. The technicians informed her there were no faults with these appliances and that the tenant had simply failed to read the instruction manuals. The costs of these call outs have been proven and evidence was produced that proves there was no fault with either appliance. Compensation for these costs has been awarded. Filing Fee
Because Ana Maria Merchant has wholly succeeded with the claim I must reimburse the filing fee.

Topics & place

Topics are dispute themes across the order (not the same as claim-type money lines).

Property damage Cleanliness Auckland

Residential Tenancies Act sections

s40(1), s40(2), s45, s49B, s49B(1), s49B(3), s49B(3A)

Key findings

Dispute theme: property damage
Dispute theme: cleaning

Frequently asked questions

Common questions about this Tenancy Tribunal case.

What was the outcome of Tenancy Tribunal case 4568078?

The tribunal order states: The Bond Centre is to pay the bond of $1,800.00 (5401673-008) to Ana Maria

How much money was awarded in case 4568078?

Call Out For Heat Pump- No Issue Fou…: $150.00 awarded to landlord; Call Out For Oven- No Issue Found: $80.50 awarded to landlord; Cleaning: $759.37 awarded to landlord; Lightbulbs: $40.00 awarded to landlord; (Bathroom Lock: $374.35 awarded to landlord; (painting costs, incl travel, materi…: $1,218.67 awarded to landlord

What type of tenancy dispute was case 4568078?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4568078?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9834521-Tribunal_Order.pdf.

Claims and awards in Tenancy Tribunal application 4568078 — net $822.89 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.

Claim

Landlord

Tenant

Reason

Light bulbs/batteries

$40.00

Light bulbs/batteries

call out for oven- no issue found

$80.50

call out for oven- no issue found

call out for heat pump- no issue found

$150.00

call out for heat pump- no issue found

Cleaning: (incl travel, products and labour

$759.37

Cleaning: (incl travel, products and labour

Reasons

Both parties attended the hearing.

The landlord has applied for compensation/general damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

The tenant has counterclaimed for compensation, refund of the bond, and reimbursement of the filing fee.

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 replace the light bulbs that were not working at the end of the tenancy.

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 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.

The following damage was caused during the tenancy: a. The bathroom lock was broken and needed to be replaced. Evidence was produced that showed the lock was forced open and broken during the tenancy; b. There was extensive damage done to many of the walls throughout the house from holes being made in the walls to hang things on and to install shelving. These holes were plastered and painted by the tenant’s mother. The plastering was rough and not sanded before being painted and was painted over in a different shade of white to that on the remainder of each wall. The painting was only applied to the areas that had been plastered and left a patchy effect on most of the walls in the house. These walls required replastering, sanding and the entire walls repainting to get rid of the rough and patchy condition the walls were left in at the end of the tenancy;

The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.

The amounts ordered are proved.

I have considered betterment and depreciation. 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 considered the age and condition of the items at the start of the tenancy and their likely useful lifespan.

Did the landlord fail to repair and maintain the premises?

Section 45 (1)(b) of the RTA states that a landlord must “provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes”.

The tenant alleged that the landlord failed to do so when she failed to address an infestation of bed bugs during the first 31 weeks of the tenancy.

The tenancy commenced on 6 January 2022 and the first time the tenant raised the issue with the landlord was on 24 May 2022. By this time the tenant had already incurred $300.00 of costs for pest control prior to informing the landlord of the issue or giving her the chance to investigate the alleged infestation or to address it in a reasonable time frame.

The landlord’s had a statement from the prior tenant that stated there had been no bedbug or pest issue during his tenancy. The landlord also gave evidence that she and her daughter had done extensive work on the premises prior to the tenant moving in on 6 January 2022 and that she and her daughter had been sitting on the floor and spending considerable time at the property and had not been bitten or experienced any issues with any sort of pests.

Given the significant delay in the tenant raising the issue with the landlord and the fact that she raised the issue only after the landlord had informed her she was going to be billed for the call out costs incurred after she reported a fault with the oven when there was no fault and she had failed to read the instruction manual.

The tenant did not prove her claim for a 31-week 50% rent reduction and reimbursement of the $300.00 pest control costs she incurred on 5 March 2022.

The tenant’s claim was not proven and was dismissed.

The tenant reported issues with the heat pump and oven near the beginning of the tenancy. The landlord promptly called technicians to repair these appliances. The technicians informed her there were no faults with these appliances and that the tenant had simply failed to read the instruction manuals. The costs of these call outs have been proven and evidence was produced that proves there was no fault with either appliance. Compensation for these costs has been awarded. Filing Fee

Because Ana Maria Merchant has wholly succeeded with the claim I must reimburse the filing fee.

Net award	$822.89
Total payable by Tenant to Landlord	$822.89

Net award

$822.89

Total payable by Tenant to Landlord

$822.89

Net award	$822.89
Total payable by Tenant to Landlord	$822.89

Net award

$822.89

Total payable by Tenant to Landlord

$822.89