What was Tenancy Tribunal case 4578116 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 4578116?

The Tribunal Orders Suppression Of T…: $2,200.00 awarded to landlord

What type of tenancy dispute was case 4578116?

The primary dispute was Leaks. Related themes: Cleanliness, Healthy homes, Property damage, Exemplary damages.

Where can I read the official tribunal order for case 4578116?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9264792-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4578116 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 4578116?

The Tribunal Orders Suppression Of T…: $2,200.00 awarded to landlord

What type of tenancy dispute was case 4578116?

The primary dispute was Leaks. Related themes: Cleanliness, Healthy homes, Property damage, Exemplary damages.

Where can I read the official tribunal order for case 4578116?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9264792-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4578116 — Leaks

Claims and awards in Tenancy Tribunal application 4578116. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
the Tribunal orders suppression of the landlord’s name and identifying details. 2. Willem Hendrik van Berkel to pay [The	$2,200.00		the Tribunal orders suppression of the landlord’s name and identifying details. 2. Willem Hendrik van Berkel to pay [The

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
Willem Hendrik van Berkel to pay [The landlord/s] $2,200.00 bond for damage to the driveway.
No order is made on the tenant’s application.
The Bond Centre is to pay the bond of $2,200.00 ([Bond number suppressed]) to [The landlord/s] immediately.

Reasons

Both parties attended the hearing.
The tenant has applied for the bond and exemplary damages for alleged breaches by the landlord of the Residential Tenancies Act 1986 (the Act) relating to the tenancy agreement.
The landlord has applied for payment of the bond for damage to the driveway.
There was an issue concerning whether the landlord has received proper notice of the tenants’ claims beyond refund of the bond. But the landlords agreed that the Tribunal should determine those claims and not adjourn the hearing.
I will deal first with the landlord’s claim. Law
Tenants must not carelessly or intentionally damage 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.
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).
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).
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.
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. The Facts, Discussion and Conclusion
The tenant accepts that he was working on a car on the driveway of the premises and oil from it damaged the driveway. He says that that the damage was caused carelessly not intentionally.
He said that he was draining oil from the car, and it missed the bucket that he had put under the car to catch the oil. It fell onto the driveway, and he tried to clean it up with cloths and a degreaser spray. He failed.
He said that he did not move the car because it could not be moved. It did not have control arms and so the car could not be steered. The car was not driveable.
He said that he eventually sold the car for scrap and when it was moved, approximately two months after the spillage, he tried to clean the driveway using asphalt cleaner and water from a hose but that was not successful. He accepted that if he had been able to use the asphalt cleaner soon after the spillage, he could have removed the oil from the driveway.
The landlord did not accept that explanation. They said that there was no sign of a bucket under the car after the incident. If a bucket had been used, it would have been under the car after the spillage to catch any more oil dripping out. They also pointed to the pattern of staining on the driveway which they said was consistent with multiple incidents of engine oil and other car fluids leaking from the car onto the driveway.
The tenant said that there was just the one incident and that the slope of the driveway caused the oil to spread across the driveway.
I have looked at the photographs showing the stains on the driveway after the car was moved. In my view they are more consistent with multiple incidents of car fluids leaking onto the driveway than with one discrete incident.
As well, I do not accept the tenant’s explanation that the car could not be moved. If oil did spill onto the driveway as he described, it was his obligation to move the car and to clean the oil from the driveway. He accepts that the oil could have been cleaned off at that time. The tenant could have found a way to move the car, and I find that he did not want to go to the trouble or expense of doing so.
I am satisfied, therefore, that the tenant caused the damage to the driveway intentionally. Putting the car on the driveway in the condition that it was and working on it made it inevitable that fluids would leak onto the driveway. The tenant could have taken steps to prevent damage to the driveway but failed to do so. He could see that fluids were leaking onto the driveway and still failed to take any precautions against damage. And he did not move the car to properly clean off the oil after he could see that it would damage the driveway if he did not do so.
In summary, the tenant did not set out to damage the driveway, but he could see that damage was inevitable and he took no steps to prevent it.
There is no dispute that it will cost the landlord $2,791 to repair the driveway and so that is the tenant’s liability. There are no limits to his liability because, as I have found, he caused the damage intentionally. As I have said, the landlord limits their claim to payment of the bond. The Tenant’s Claims Carpet Cleaning
The tenancy agreement includes a term that the tenant must have the carpet professionally cleaned at the end of the tenancy. The tenant is correct to say that the term is inconsistent with the Act because s40 of the Act imposes a duty on tenants to leave the premises reasonably clean and tidy. Carpets do not necessarily have to be professionally cleaned to leave them reasonably clean and so imposing an obligation to do so puts an obligation on the tenant that differs from and may exceed the obligation imposed by the Act.
I accept the landlord’s evidence that the carpets did need professional cleaning because there were oil stains on them from the tenant’s work on the car. That is consistent with the tenant’s behaviour regarding the driveway damage. As well, I doubt whether the tenant would have employed and paid a professional carpet cleaner unless he thought the carpets needed professional cleaning.
If I am wrong about that, the tenant’s claim for the $130 cost of the cleaning is less than the difference between the bond and the cost of repairing the driveway ($591).
I do not think that an award of exemplary damages is appropriate for the breach of s137 of the Act. That section states; - 137 Prohibited Transactions (1) No person shall— (a) enter into any transaction, or make any contract or arrangement, purporting to do, whether presently or at some future time or upon the happening of any event or contingency, anything that contravenes or will contravene any of the provisions of this Act; or (b) enter into any transaction or make any contract or arrangement, whether orally or in writing, or do anything, for the purpose of or having the effect of, in any way, whether directly or indirectly, defeating, evading, or preventing the operation of any of the provisions of this Act. (2) Requiring any person to enter into any transaction, or to make any contract or arrangement, in contravention of subsection (1) is hereby declared to be an unlawful act.
I accept that the requirement for professional carpet cleaning is in breach of s137(1) and so the Tribunal may award exemplary damages against the landlord. I do not think it is appropriate to do so. The landlords are deemed to know the law and plainly imposing the requirement was intentional. But I accept it was based on their understanding of what reasonably clean means. That is an amorphous concept that means different things to different people. The landlords were not setting out to contravene the Act.
Even if I were awarding exemplary damages, any award would be modest. This would not be a serious breach involving, as it does, the cost of carpet cleaning which may or may not be needed. Most tenants know that the standard required is reasonably clean and can make their own assessment of what cleaning is needed. Tenancy Agreement
I accept that landlords’ evidence that they provided a complete copy of the tenancy agreement and a Healthy Homes report to Mr Van Berkel’s co-tenant and thus complied with s13 of the Act in those respects. I note that the co- tenant is not a party to this application and there was no evidence from her.
The landlords gave the tenancy address on the tenancy agreement instead of their home address and that was a breach of s13. They said it was a genuine mistake. That maybe so but it is not an excusable mistake in my view. The tenant is entitled to have a contact address for the landlords and plainly it was not the tenancy address. I would have awarded $300 for the breach while noting that the tenant could have asked the landlords for their address at any time. I make no award because it is less than the difference between the bond and the cost of the driveway cleaning. Filing Fee
There is no award of filing fees. Both applications had some merit. Suppression
The landlord has been largely successful and so I have granted them name suppression. The tenant did not seek suppression.

Claims and awards in Tenancy Tribunal application 4578116. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
the Tribunal orders suppression of the landlord’s name and identifying details. 2. Willem Hendrik van Berkel to pay [The	$2,200.00		the Tribunal orders suppression of the landlord’s name and identifying details. 2. Willem Hendrik van Berkel to pay [The

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
Willem Hendrik van Berkel to pay [The landlord/s] $2,200.00 bond for damage to the driveway.
No order is made on the tenant’s application.
The Bond Centre is to pay the bond of $2,200.00 ([Bond number suppressed]) to [The landlord/s] immediately.

Reasons

Both parties attended the hearing.
The tenant has applied for the bond and exemplary damages for alleged breaches by the landlord of the Residential Tenancies Act 1986 (the Act) relating to the tenancy agreement.
The landlord has applied for payment of the bond for damage to the driveway.
There was an issue concerning whether the landlord has received proper notice of the tenants’ claims beyond refund of the bond. But the landlords agreed that the Tribunal should determine those claims and not adjourn the hearing.
I will deal first with the landlord’s claim. Law
Tenants must not carelessly or intentionally damage 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.
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).
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).
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.
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. The Facts, Discussion and Conclusion
The tenant accepts that he was working on a car on the driveway of the premises and oil from it damaged the driveway. He says that that the damage was caused carelessly not intentionally.
He said that he was draining oil from the car, and it missed the bucket that he had put under the car to catch the oil. It fell onto the driveway, and he tried to clean it up with cloths and a degreaser spray. He failed.
He said that he did not move the car because it could not be moved. It did not have control arms and so the car could not be steered. The car was not driveable.
He said that he eventually sold the car for scrap and when it was moved, approximately two months after the spillage, he tried to clean the driveway using asphalt cleaner and water from a hose but that was not successful. He accepted that if he had been able to use the asphalt cleaner soon after the spillage, he could have removed the oil from the driveway.
The landlord did not accept that explanation. They said that there was no sign of a bucket under the car after the incident. If a bucket had been used, it would have been under the car after the spillage to catch any more oil dripping out. They also pointed to the pattern of staining on the driveway which they said was consistent with multiple incidents of engine oil and other car fluids leaking from the car onto the driveway.
The tenant said that there was just the one incident and that the slope of the driveway caused the oil to spread across the driveway.
I have looked at the photographs showing the stains on the driveway after the car was moved. In my view they are more consistent with multiple incidents of car fluids leaking onto the driveway than with one discrete incident.
As well, I do not accept the tenant’s explanation that the car could not be moved. If oil did spill onto the driveway as he described, it was his obligation to move the car and to clean the oil from the driveway. He accepts that the oil could have been cleaned off at that time. The tenant could have found a way to move the car, and I find that he did not want to go to the trouble or expense of doing so.
I am satisfied, therefore, that the tenant caused the damage to the driveway intentionally. Putting the car on the driveway in the condition that it was and working on it made it inevitable that fluids would leak onto the driveway. The tenant could have taken steps to prevent damage to the driveway but failed to do so. He could see that fluids were leaking onto the driveway and still failed to take any precautions against damage. And he did not move the car to properly clean off the oil after he could see that it would damage the driveway if he did not do so.
In summary, the tenant did not set out to damage the driveway, but he could see that damage was inevitable and he took no steps to prevent it.
There is no dispute that it will cost the landlord $2,791 to repair the driveway and so that is the tenant’s liability. There are no limits to his liability because, as I have found, he caused the damage intentionally. As I have said, the landlord limits their claim to payment of the bond. The Tenant’s Claims Carpet Cleaning
The tenancy agreement includes a term that the tenant must have the carpet professionally cleaned at the end of the tenancy. The tenant is correct to say that the term is inconsistent with the Act because s40 of the Act imposes a duty on tenants to leave the premises reasonably clean and tidy. Carpets do not necessarily have to be professionally cleaned to leave them reasonably clean and so imposing an obligation to do so puts an obligation on the tenant that differs from and may exceed the obligation imposed by the Act.
I accept the landlord’s evidence that the carpets did need professional cleaning because there were oil stains on them from the tenant’s work on the car. That is consistent with the tenant’s behaviour regarding the driveway damage. As well, I doubt whether the tenant would have employed and paid a professional carpet cleaner unless he thought the carpets needed professional cleaning.
If I am wrong about that, the tenant’s claim for the $130 cost of the cleaning is less than the difference between the bond and the cost of repairing the driveway ($591).
I do not think that an award of exemplary damages is appropriate for the breach of s137 of the Act. That section states; - 137 Prohibited Transactions (1) No person shall— (a) enter into any transaction, or make any contract or arrangement, purporting to do, whether presently or at some future time or upon the happening of any event or contingency, anything that contravenes or will contravene any of the provisions of this Act; or (b) enter into any transaction or make any contract or arrangement, whether orally or in writing, or do anything, for the purpose of or having the effect of, in any way, whether directly or indirectly, defeating, evading, or preventing the operation of any of the provisions of this Act. (2) Requiring any person to enter into any transaction, or to make any contract or arrangement, in contravention of subsection (1) is hereby declared to be an unlawful act.
I accept that the requirement for professional carpet cleaning is in breach of s137(1) and so the Tribunal may award exemplary damages against the landlord. I do not think it is appropriate to do so. The landlords are deemed to know the law and plainly imposing the requirement was intentional. But I accept it was based on their understanding of what reasonably clean means. That is an amorphous concept that means different things to different people. The landlords were not setting out to contravene the Act.
Even if I were awarding exemplary damages, any award would be modest. This would not be a serious breach involving, as it does, the cost of carpet cleaning which may or may not be needed. Most tenants know that the standard required is reasonably clean and can make their own assessment of what cleaning is needed. Tenancy Agreement
I accept that landlords’ evidence that they provided a complete copy of the tenancy agreement and a Healthy Homes report to Mr Van Berkel’s co-tenant and thus complied with s13 of the Act in those respects. I note that the co- tenant is not a party to this application and there was no evidence from her.
The landlords gave the tenancy address on the tenancy agreement instead of their home address and that was a breach of s13. They said it was a genuine mistake. That maybe so but it is not an excusable mistake in my view. The tenant is entitled to have a contact address for the landlords and plainly it was not the tenancy address. I would have awarded $300 for the breach while noting that the tenant could have asked the landlords for their address at any time. I make no award because it is less than the difference between the bond and the cost of the driveway cleaning. Filing Fee
There is no award of filing fees. Both applications had some merit. Suppression
The landlord has been largely successful and so I have granted them name suppression. The tenant did not seek suppression.

Tenancy Tribunal case 4578116 — Leaks

At a glance

Tenancy Tribunal case 4578116 — Leaks

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions