What was Tenancy Tribunal case 4571769 about?

The tribunal order states: The Tribunal orders suppression of the tenant’s and landlord’s name and

How much money was awarded in case 4571769?

Compensation: Failed to maintain dis…: $150.00 awarded to tenant; Exceeding Maximum Occupants: $500.00 awarded to landlord; Property Damage: $200.00 awarded to tenant; Rent Arrears: $480.00 awarded to landlord

What type of tenancy dispute was case 4571769?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4571769?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9265387-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4571769 about?

The tribunal order states: The Tribunal orders suppression of the tenant’s and landlord’s name and

How much money was awarded in case 4571769?

Compensation: Failed to maintain dis…: $150.00 awarded to tenant; Exceeding Maximum Occupants: $500.00 awarded to landlord; Property Damage: $200.00 awarded to tenant; Rent Arrears: $480.00 awarded to landlord

What type of tenancy dispute was case 4571769?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4571769?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9265387-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4571769 — Rent arrears

Claims and awards in Tenancy Tribunal application 4571769 — net $630.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 01 May 2023	$480.00		Rent arrears to 01 May 2023
Exceeding maximum occupants	$500.00		Exceeding maximum occupants
Exemplary damages: Failed to lodge bond		$200.00	Failed to lodge bond
Compensation: Failed to maintain dishwasher		$150.00	Failed to maintain dishwasher
Total award	$980.00	$350.00
Net award	$630.00
Total payable by Tenant to Landlord	$630.00

Claims and awards in Tenancy Tribunal application 4571769 — net $630.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 01 May 2023	$480.00		Rent arrears to 01 May 2023
Exceeding maximum occupants	$500.00		Exceeding maximum occupants
Exemplary damages: Failed to lodge bond		$200.00	Failed to lodge bond
Compensation: Failed to maintain dishwasher		$150.00	Failed to maintain dishwasher
Total award	$980.00	$350.00
Net award	$630.00
Total payable by Tenant to Landlord	$630.00

Order

The Tribunal orders suppression of the tenant’s and landlord’s name and identifying details.
The Landlord holds the bond of $2,240.00. The landlord may deduct $630.00 from the bond. The landlord must then pay the balance of [The landlord/s] to the tenant immediately, as calculated and shown in table below.

Reasons

Both parties attended the hearing. The tenant was represented by Counsel. Description LandlordTenant Rent arrears to 01 May 2023 Exceeding maximum occupants $480.00 $500.00 Exemplary damages: Failed to lodge bond $200.00 Compensation: Failed to maintain dishwasher $150.00 Total award$980.00$350.00 Net award$630.00 Payable to landlord from bond already held Balance of bond payable by landlord to tenant $630.00 $1,610.00
On 18 May 2023, there was a Case Management Conference identifying the claims made by both tenant and landlord.
The onus of proving these claims will rest with the respective applicant. The standard of proof required is on the balance of probabilities. Each must produce evidence sufficient to establish that more likely than not the other has breached the terms of the tenancy agreement, or provisions of the Residential Tenancies Act 1986 (The “Act”).
The tenant’s claims are that: (the damages claimed are in brackets) (i) The landlord failed to lodge the bond, section 19(1) of the Residential Tenancies Act 1986 (The “Act”), (exemplary damages $500.00), (ii) The 63-day notice issued on 04 March 2023 was retaliatory and had been motivated either wholly or partly by the tenant seeking to exercise their rights to have the property maintained in a reasonable condition, section 54(1) of the Act, (exemplary damages $500.00), (iii) The landlord has failed to provide and maintain an approved form of heating in the main living room, section 45(1)(c) of the Act, and Regulation 6 Housing Improvement Regulations 1947, (exemplary damages $600.00), (iv) The landlord has failed to provide and maintain the property in a reasonable state of repair, section 45(1)(b) of the Act, (exemplary damages $600.00), (v) The landlord has failed to provide and maintain the dishwasher in a reasonable state of repair, section 45(1) of the Act (amount included in the amount claimed at (iv)).
The landlord’s claims are that: (the damages claimed are in brackets) (i) The tenant owes vacated rent arrears, ($480.00) (ii) The tenant is responsible for damage to the laundry, section 49B of the Act, (compensation $4,424.23), (iii) The tenant is responsible for damage to the bathroom, section 49B of the Act, (compensation $9,690.75) (iv) The tenant is responsible for damage to a window hinge and latch in one of the bedrooms, section 49B of the Act, (compensation $14.12) (v) The tenant is responsible for damage to the dishwasher, section 49B of the Act, (compensation $1,575.00), (vi) The tenant is responsible for damage to the wall heater, section 49B of the Act, (compensation $99.00) (vii) The tenant breached the terms of the tenancy agreement by keeping a dog at the property, (none) (viii) The tenant has exceeded the number of occupants allowed to reside at the property, section 40(3) of the Act, (compensation $2,200.00) Tenant claims The landlord failed to lodge the bond, section 19(1) of the Residential Tenancies Act 1986 (The “Act”), (exemplary damages $500.00).
The tenant claims the landlord did not lodge the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) of the Act.
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 of the Act.
There is no dispute that the bond of $2,240.00 was paid directly to the landlord by Work and Income, but that it was not then lodged with the Bond Centre within the required time frame. The landlord states that they were ignorant of their obligation to do so. Upon discovering this, on or about 23 November 2022, the bond has not subsequently been lodged, and remains in the possession of the landlord. In a letter produced by the landlord, written by the landlord’s mother, who appears to have from time to time acted as an agent, it is suggested that the tenant and landlord entered into an agreement whereby the landlord would make part payments of the bond to the tenant less any rent arrears owed at the material time. The tenant denies any such agreement. Regardless, any such agreement is contrary to the provisions of the Act, unlawful, and unenforceable against the tenant.
I am satisfied that the landlord has upon receipt of the bond failed to lodge it and have therefore 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) of the Act.
The landlord’s initial failure to lodge the bond was further compounded when having become aware that they had breached the provisions of the act they then again failed to remedy the matter. I am satisfied that both errors have arisen from an ignorance of the law. The landlord is a recent landlord. It is however in the interest of the parties, and the public, that all landlords have knowledge of the provisions concerning bonds. A bond is the tenant’s money which should be held in trust by the Bond Centre. The tenant states that when they discovered the bond had not been lodged, they suffered stress and anxiety. Taking the relevant factors into account, I am satisfied that an award of $200.00 exemplary damages is appropriate. The 63-day notice issued on 04 March 2023 was retaliatory and had been motivated either wholly or partly by the tenant seeking to exercise their rights to have the property maintained in a reasonable condition, section 54(1) of the Act, (exemplary damages $500.00).
No evidence has been offered and this claim is dismissed. The landlord has failed to provide and maintain an approved form of heating in the main living room, section 45(1)(c) of the Act, and Regulation 6 Housing Improvement Regulations 1947, (exemplary damages $600.00).
The tenants written submissions refer to a failure by the landlord to comply with the Healthy Homes Standards (“HHS”) which dictate minimum standards for heating.
The tenancy commenced on 04 September 2020 and was for a two-year fixed term. At the expiry of the fixed term on 04 September 2022, the tenancy became periodic. The tenant submits that the landlord had 90 days from 04 September 2022, in which to comply with the HHS.
For tenancies renewed or commenced after 01 July 2021, the landlord has 90 days in which to comply, those tenancies renewed or commenced after 27 August 2022, the landlord has 120 days in which to comply. These provisions do not apply where an existing tenancy is varied, or the tenancy has converted from a fixed term to periodic. All tenancies must comply by 01 July 2025.
In this case no new agreement was entered, and the present agreement simply rolled over from fixed term to periodic. Although the HHS did not apply to this tenancy until 01 July 2025, the property was subject to the Housing Improvement Regulations 1947, Regulation 6 of which states that the landlord must under section 45(1)(c) of the Act provide and maintain an approved form of heating in the main living room.
In this case the main living room consists of an open plan dining and lounge. While there is a wall mounted electric fan heater in the lounge the tenant is of the view that it is inadequate to properly heat the space. The tenant states that the heater stopped working around August 2022 but cannot recall if they advised the landlord at the material time, although state that they likely did so before the end of the tenancy. The landlord states that they commissioned an HHS report prior to the tenancy and although the heating would need to be increased to comply with the HHS standards it was adequate to meet the current requirements. There is no evidence that it does not. The landlord states that during an inspection on 07 May 2023, the tenant raised the adequacy of the heater. The landlord states they offered to install another electric heater in the dining room and upstairs bedroom, reimburse the tenant for additional heaters they had brought from a previous tenancy, and contribute toward the power, all of which the tenant declined. The tenant denies that any such offer was made.
In this claim the onus is on the tenant to satisfy the Tribunal that the landlord has failed to provide and maintain an approved form of heating in the main living room. There is no evidence that the heater was not an approved form of heating. I am not satisfied that the landlord was in fact advised that it had stopped working. The claim is dismissed. The landlord has failed to provide and maintain the property in a reasonable state of repair, section 45(1)(b) of the Act, (exemplary damages $600.00).
This claim concerns an allegation that the landlord has failed to maintain the downstairs laundry ceiling and the bathroom.
Section 45(1)(b) of the Act states that the landlord must provide and maintain the property in a reasonable state of repair, having regard to the age and character of the property and the period during which the property is likely to remain habitable and available for residential purposes.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A), 109(3) and Schedule 1A of the Act.
The landlord’s obligation under section 45(1)(b) of the Act is to investigate and repair any defect brought to their attention within a timeframe which is reasonable in the circumstances. As to what that timeframe is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right whatever the problem might be.
On or about 26 August 2022 the tenant advised that the wooden step into the shower had become rotten, and that their adult son had put his foot through it. This was repaired by the landlord in September 2022. On 06 January 2023, the tenant noticed water coming through the ceiling in the laundry. The laundry is situated beneath the bathroom. The tenant attempted to contact the landlord but states they could not. The tenant was however able to contact a member of the landlord’s whanau, who I have stated from time to time have acted as the landlord’s agent. That day a tradesperson attended and fixed the leak. While it is accepted that the leak came from the waste pipe beneath the shower, there is a dispute as to what caused the leak. This will be dealt with later in the landlord’s claims.
There is no evidence that the rotten step had previously been raised with the landlord. The photograph produced suggests that it may not have been obviously detectable during a property inspection. The issue with the waste pipe was in my view undetectable to both parties until water came through the ceiling. In both cases I am not satisfied that the landlord has failed to respond or remedy the matter in a reasonable period. The claim that the landlord has failed to maintain the laundry and bathroom in a reasonable condition is dismissed. The landlord has failed to provide and maintain the dishwasher in a reasonable state of repair, section 45(1)(b) of the Act (included in the amount claimed at (iv)).
The tenancy included a dishwasher, listed as a chattel in the agreement.
As stated, section 45(1)(b) of the Act states that the landlord must provide and maintain the property, which includes chattels, in a reasonable state of repair.
The tenant states that during a visit to the property by the landlord on or about 08 February 2023, they advised that the dishwasher was not working properly. The tenant states the landlord advised they would have it repaired, or replaced, but that it was not a priority. The tenant states that the matter remained unresolved to the end of the tenancy, and they did the dishes by hand. The tenant states that not only was this an inconvenience but that it also aggravated a recent foot injury they had suffered. There is no dispute that the tenant was wearing a moon boot at the time.
The landlord states that the dishwasher was new in 2019. The landlord states the tenant appeared to be happy to wash the dishes by hand, and that the tenant had advised, perhaps optimistically, that their young adult son would do the dishes. The tenant states that they were not “happy” but accepted that until the dishwasher was fixed, they would have to do the dishes by hand. The landlord states they made phone enquiries concerning repair or replacement of the unit, but due to parts and or supply issues, and the fact that they intended ending the tenancy with notice, that the matter remained unresolved. The landlord states that upon gaining possession of the property they discovered the that although the unit can wash dishes, it has a fault where it does not turn off after the drying cycle.
I am not satisfied that the tenant has waived their right or in any way excused the landlord from maintaining the dishwasher and should therefore be estopped from bringing the claim. I am satisfied that there was an anticipation that the matter would be rectified, and that in the interim the tenant accepted that they would have to wash the dishes by hand. Although there has been a failure, and breach by the landlord, I am not satisfied that an award of exemplary damages is warranted. I am satisfied that the tenant has suffered a loss of amenity as in this case they have failed to receive something they had bargained, and which was included in the tenancy, a functioning dishwasher. I award the tenant compensation of $150.00. Landlord claims The tenant owes vacated rent arrears, ($480.00)
The landlord has produced a rent summary recording all the rent payments made. The tenant accepts the accuracy of the summary. I am satisfied that at the end of the tenancy on 01 May 2023, there were rent arrears. I award the amount sought. The landlord has also raised whether the fact of rent arrears should in this case also attract an award of general damages. Although failing to pay rent is a breach of the agreement, and the Act, there is no basis on which to award damages over and above the financial loss actually suffered. The tenant is responsible for damage to the laundry, section 49B of the Act, (compensation $4,424.23),
To succeed with a claim for damage the landlord must satisfy the Tribunal that the damage occurred during the tenancy and is more than fair wear and tear. The tenant’s liability will follow a breach of the agreement or provisions of the Act not to cause or permit damage, over and above fair wear and tear, to be caused to the property. Fair wear and tear can be described as damage which arises during the ordinary day to day use of the property. See Taylor v Webb [1937] 2KB 283 (CA). Fair wear and tear is damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use.
Once the landlord has established to the required standard that the damage occurred during the tenancy, and that it is more than fair wear and tear, the onus shifts to the tenant who must show that the damage was not the result of a careless or intentional act on their part, or someone at the property with their permission.
In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord. For the purposes of the Act carelessness has its normal meaning of lack of care, negligence, or lack of foresight.
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.
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. A tenant is liable for the full cost of repairing damage that they have caused intentionally.
On the tenancy agreement the landlord has disclosed that they have insurance with an excess of $1,000.00 per claim. The landlord has produced their policy which confirms that they are not covered for intentional damage caused by tenants. In this case the landlord appears to have cover for damage, which is not intentional, with an excess of $1,000.00 per claim.
The landlord states that during an inspection in August 2021 that they noted that the wall behind the washing machine and tub in the laundry was wet to touch. The landlord raised this with the tenant who stated that the sink in which the washing machine drains had become blocked and overflowed but that this had been an isolated incident. The landlord states they conducted regular inspections between August 2021 and February 2023 but did not detect any ongoing issues.
Following the leak from the shower waste outlet on 06 January 2023 the landlord arranged an insurance assessor to inspect the damage to the ceiling in the laundry. The landlord states that during the inspection the assessor noted that the wall behind the washing machine and tub was damp, and noted that the likely cause was continuous overflow from the laundry tub caused by the incorrect installation of the outlet from the washing machine into the tub, and that the outlet should have been plumbed in. The landlord states that they were advised by the assessor that insurance would not cover the damage to the wall as in their opinion it had been caused by the tenant allowing repeated overflow from the tub which they viewed as an intentional act. The landlord states that the water damages affected the wall behind the appliances and one adjacent. There are no photographs showing the damage. The photographs produced show remedial work being undertaken with the lower half of each wall having been removed exposing the framing which appears to be discoloured by water damage. The landlord also states that moisture testing was completed on the upper portion of the walls which ruled out damage from the shower leak above.
The tenant states that there were just the two occasions were the tub overflowed. On the second occasion they caught it just before the water spilled out. The tenant states that the tub showed signs of rusting at its base at the start of the tenancy. That there were never any issues detected concerning moisture or dampness until the leak from the shower above the laundry in January 2023, which had resulted in water dripping onto the tub and washing machine.
The tenant has referred to a text message to the landlord on 28 February 2023 reporting that water continued to drip from the ceiling above and onto the washing machine. The tenant submits that no moisture testing results have been produced, nor is there, apart from an estimate of works to the bathroom above ($9,690.75), any evidence from the assessor concerning the laundry.
The tenant states the washing machine was purchased with the help of Work and Income and professionally installed using the standard attachments that secure the outlet to the lip of the tub.
The onus is on the landlord to satisfy the Tribunal on balance, that is more likely than not, the damage has been caused by an act or omission on the part of the tenant, or someone at the property with the tenant’s permission.
Despite regular inspections by the landlord between August 2021 and February 2023, no ongoing issues were detected until after the leak from the shower above in January 2023. There is no evidence confirming the moisture testing or assessor’s opinion concerning the likely cause of the damage before the Tribunal. The photographs produced by the tenant suggest the method of securing the outlet to the tub has used the attachment provided and is one commonly used. There are no grounds to reject the tenant’s claim that they are not responsible for repeated instances where water escaped the tub onto the wall behind and adjacent. I cannot rule out that the leaking from the bathroom above has not affected the laundry below. I cannot be satisfied to the required standard that the tenant has by act or omission caused the damage and the claim is dismissed. The tenant is responsible for damage to the bathroom, section 49B of the Act, (compensation $9,690.75)
As stated, in August 2022, the tenant reported, and the landlord repaired a rotten wooden step into the shower. In January 2023 the tenant reported, and the landlord repaired the wastewater outlet under the shower. The leak from the wastewater outlet resulted in damage to the laundry ceiling and water made its way onto the washing machine and tub below.
On 20 March 2023, the tenant reported that the shower head was leaking. The plumber who attended has stated in their invoice, “found a split in the shower head causing water to constantly run down behind the wall behind the mixer. Replaced the shower head. Tried to relevel the mixer against the wall to seal better but was unable to get it to move. Strongly recommend replacing the shower and flooring surrounding the shower”.
The landlord states that following their regaining possession in May 2023, that their mother, “fell through the wall”. The landlord states that they removed the lining on the other side of the wall, on which the shower head and mixer is attached and discovered that one of the upright joists had been severely affected by water damage. The photograph produced also shows that the back of the shower lining has been affected by water damage causing mould and discolouring.
The landlord states that the damage to the joist has been caused by screws used to secure a shower tray. The landlord states that their father installed the shower tray in May 2020, used the adhesive strips provided, and did not use screws, which would have compromised the integrity of the lining. The landlord states that upon removing the tray from its bracket they discovered that screws had been used. The photograph produced shows four blackened and rusty screws with what appears to be a residue of sealant around one. The landlord claims that the tenant or someone at the property with the tenant’s permission has installed the screws, which was an intentional act resulting in the damage to the joist and wall.
The landlord has also reconsidered the events concerning the wastewater outlet and the split shower head and are now of the view that the tenant is responsible for this damage as well.
The tenant states that they did not remove the shower tray and insert screws to the bracket, and that this was something, if they had become aware of any issue, having no tools or the requisite knowledge themselves, they would have advised and expected the landlord to address. The tenant states that there were other tenants in the property prior to their tenancy. As the bracket can only be seen once the tray is removed it was not possible to determine whether the screws had been inserted prior to the tenancy. The landlord states that they resided at the property with others before leaving in July 2020 whereafter the others remained in occupation until around the end of August 2020. The landlord states they have spoken to the other occupants, but none have admitted to installing screws. There are no statements produced from the landlord’s father or the other occupants.
In this part of the claim the Tribunal must be satisfied, more likely than not, the tenant or someone at the property with the tenant’s permission removed the shower tray and inserted screws without taking steps to properly seal the holes. Having considered the evidence I am not satisfied that the tenant or someone at the property with the tenant’s permission installed the screws. I cannot discount the possibility that they were installed prior to the commencement of the tenancy.
The landlord states that the wastewater leak was likely caused by the tenant failing to clean the outlet. The invoice provided by the plumber who repaired the wastewater outlet on 06 January 2023 states, “leaking shower waste, removed old waste and replaced. Repairs to the ceiling and floor required”. The tenant states that unlike more modern shower basins there is no ability to remove the grate above the outlet for cleaning, and further that there was no sign of water sitting in the shower basin indicating the waste outlet had become blocked. The tenant also states that the plumber advised that it was likely caused by fair wear and tear. The tenant states the first time they became aware of any issue was when there was a leak downstairs upon which they immediately advised the landlord. The tenant submits, and I accept, that the leak may have been occurring over a prolonged period without the tenant, or the landlord, being aware. Similarly concerning the damage to the shower head. There is insufficient to find that the tenant was responsible for damaging the shower head. While I accept that the mixer had been replaced in May 2020 there is insufficient evidence that this also included the shower head as well. There are also no photographs of the damaged shower head. The tenant states that they reported the matter as soon as they discovered that there may be an issue. I cannot rule out the possibility that water had been traveling down the wall and behind the mixer, which appears may not have been flush against the wall, and that it may have done so undetected for some time.
For these reasons I am not satisfied that the tenant is responsible, by act or omission, for the damage to the bathroom. The claim is dismissed. The tenant is responsible for damage to a window hinge and latch in one of the bedrooms, section 49B of the Act, (compensation $14.12)
The landlord has produced photographs of a set of aluminium joinery windows in one of the bedrooms showing damage to one of the hinges and two of the latches. The landlord states that they stayed in the bedroom concerned until July 2020, whereafter it remained empty until the commencement of the tenancy. The tenant states they were not aware of any damage to the windows. There is no completed pre tenancy checklist or photographs showing the condition of the windows at the commencement of the tenancy. The property was constructed in 1999. The hinges and latches appear, from the photographs, to be original. I cannot be satisfied as to the condition of the damaged items at the commencement of the tenancy. I cannot be satisfied that the damage is more than fair wear and tear. The claim is dismissed. The tenant is responsible for damage to the dishwasher, section 49B of the Act, (compensation $1,575.00),
The landlord states that at the end of the tenancy, and in the process of investigating the fault with the dishwasher, they pulled the unit out from under the bench and discovered that the inlet pipe appeared to have a scorch mark on it. There is no evidence confirming the state of the pipes at the commencement of the tenancy. There is no evidence linking the scorch mark on the pipe to the fault. It may have been the cause of the fault. It may have been caused by the fault. There is insufficient evidence, and the claim is dismissed. The tenant is responsible for damage to the wall heater, section 49B of the Act, (compensation $99.00)
No evidence has been offered and the claim is dismissed. The tenant breached the terms of the tenancy agreement by keeping a dog at the property, (none)
The tenancy agreement records: “pets allowed – 2x fish tank, 1 cat + occasional visit by 1 dog”. The landlord claims that the tenant breached this clause by having a small dog regularly at the property. The landlord states that they saw the dog on at least 5 of the 6 inspections conducted over the course of the tenancy and had also asked the tenant to remove a temporary gate which had been attached to the outside of the house. The tenant denies that the dog was a permanent resident at the property. The tenant states that the clause was added by an agent of the landlord following a disclosure made by the tenant that her grandmother had to be placed in hospital level care and her beloved chihuahuas had been placed in a kennel. The tenant advised that one of the dogs had died leaving the other alone and bereft. To relieve the dogs suffering the tenant states they would from time to time take it from the kennel and bring it home for company, and that it was a coincidence that the dog was present during the landlord’s inspections. The tenant states that her grandmother has since passed away, and that their new landlord has allowed the dog to stay.
If the dog was ordinarily resident elsewhere, the kennel, having previously resided with its owner, then it was not by definition “an occupier of the property”. The Oxford Dictionary defines “occasional” as “happening or done sometimes but not often”. Having heard from the tenant I am satisfied that the dog, while not ordinarily resident at the property, was more likely than not a regular, as opposed to an occasional visitor.
Although the claim has been proven there is no evidence, or claim, for damages. The tenant has exceeded the number of occupants allowed to reside at the property, section 40(3) of the Act, (compensation $2,200.00)
[The landlord/s] claims that the number of people living at the premises exceeded the maximum number allowed in the tenancy agreement.
Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant must ensure that the number is not exceeded. See section 40(3) of the Act.
The tenancy agreement specifies that the maximum number of three occupants were allowed to reside at the property. These were the tenant, and their two children aged 11 and 21.
The landlord states that during an inspection on or about 17 February 2022, they discovered a mature male residing in one of the bedrooms. The male was not listed on the agreement as an occupant. The landlord states the male advised that they had been there over the proceeding Covid 19 lockdown and that they had been paying board to the tenant. The landlord states they advised the male that this was okay but that he had to vacate the property in mid-March 2022. The landlord states that there was a discussion on the driveway with the tenant, the male concerned, the landlord, the landlord’s father, and a female neighbour, with whom it later transpired was having an illicit affair with the male concerned. The landlord states they did not return to confirm the male had left but was advised by another neighbour in November 2022, the partner of the female neighbour, that the male was still staying at the property. Apart from the discussion in February 2022 the landlord does not appear to have otherwise raised the matter with the tenant until the filing of their claim. Although the exact date that the male arrived is unknown, the landlord is seeking compensation of $100.00 per week for the period 01/10/2021 to 30/02/2022 of $2,200.00.
The tenant states that the male concerned was a work colleague of her eldest son who was in [redacted] for work purposes. The tenant states that the male concerned ordinarily resided out of town, worked in [redacted] weekdays, and then returned home most weekends. The tenant states that the male arrived on or about 15 February 2022. The tenant states that she was not present at the discussion on the driveway and had not been challenged by the landlord at any time and was unaware of the landlord’s ultimatum. The tenant states the male’s mother, who had been caring for his two young children, had become unwell, and that he left the property around September 2022.
The reference to “ordinarily resident” in section 40(3) of the Act, implies some form of permanence of occupation, and does not extend to visitors who may stay for brief periods of time, see Ioannou v Drummond TT Wellington 4117151, 21 February 2018.
There is insufficient evidence to find that the male concerned was at the property prior to 17 February 2022, nor is there any evidence from the neighbour who asserted to the landlord that the male was still resident in November 2022. Having heard from the tenant, I am satisfied the male likely resided at the property weekdays over the period February 2022 to September 2022, some 7 months. In my view this length of stay has a degree of permanence and is not what I consider to be a stay for a brief period. I am therefore satisfied that there has been a breach of section 40(3) of the Act. Although there is no evidence that the male caused damage, I accept that by exceeding the number of occupants that there may have been increased fair wear and tear over and above that anticipated by the landlord. I award the landlord compensation of $500.00. Costs
Under Section 102 (4) the Tribunal has a discretion to award an applicant who has been partly successful reimbursement of their filing fee. In this case both landlord, and tenant have been partly successful. As ordering reimbursement of the filing fee to one party would be cancelled out by the award to the other, I decline to make any order. Name suppression
Both parties seek name suppression.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
Section 95A (4) of the Act provides the Tribunal a discretion to order name suppression outside those grounds contained in section 95A.
The tenant has been successful in two of their five claims, the landlord successful in three of their eight claims. Conversely the tenant has successfully defended five of the eight claims made against them, the landlord has successfully defended three of the five claims made against them. “Substantially” successful is not defined in the Act. The Oxford English Dictionary defines substantially to mean: ‘Fully, amply; to a great extent or degree; considerably, significantly.’ Whether a party has been substantially successful before the Tribunal will involve an objective assessment. Overall, I am satisfied each party can be viewed as substantially successful, either bringing or defending the claims. Had I not been satisfied that section 95A applied, there would have in any event been grounds to order suppression under section 95A (4) of the Act for reasons relevant to the personal circumstances of both parties.

Tenancy Tribunal case 4571769 — Rent arrears

At a glance

Tenancy Tribunal case 4571769 — Rent arrears

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions