What was Tenancy Tribunal case 4595392 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 4595392?

The reconciled net award was $1,047.80.

What type of tenancy dispute was case 4595392?

The primary dispute was Property damage. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4595392?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9394089-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4595392 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 4595392?

The reconciled net award was $1,047.80.

What type of tenancy dispute was case 4595392?

The primary dispute was Property damage. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4595392?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9394089-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4595392 — Property damage

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties names and identifying details.
[The tenant/s] to pay [The landlord/s] $1,047.80 from the bond in accordance with the following table:
The Bond Centre is to pay the remaining bond of $1,280.00 ([Bond number suppressed]) as follows: $1,047.80 to [The landlord/s] $232.20 to [The tenant/s]

Reasons

This tenancy lasted one year. Whilst it has ended amicably, the parties wish the Tribunal to settle a disagreement between them relating to some damage that occurred to the wood floors of the living room.
[The tenant/s] says that when vacuuming, some debris got caught up in the vacuum cleaner and scratched the floor. He therefore says it was accidental as he was exercising all due care, and he stopped as soon as he saw the damage. He says he is not surprised he didn’t realise as it was occurring as the vacuum is big and heavy. [The landlord/s] is perplexed as to how it occurred accidentally; he says the extent and nature of the damage indicates that [The tenant/s] must have been acting with a lack of care. He agrees that there was no intention of [The tenant/s] to damage the floor but considers that it was caused carelessly.
Both parties agree that [The landlord/s] had spoken to [The tenant/s] at the beginning of the tenancy about the floors which he took pride in and asked them to take care of. [The tenant/s] says they had always been very careful with the floors; ensuring they kept protectors on their furniture to avoid them scratching the floor.
[The landlord/s] has applied for compensation to refund him the insurance excess he paid in having the floors replaced. He gave extensive evidence as to why a replacement was the most cost-efficient remedy to the issue and his insurance has paid the bulk of the cost, but he has paid the excess. The tenants have applied for compensation for a breach of their quiet enjoyment while the floors were repaired as they say they had a lack of amenity during this time which was unnecessary.
Before I discuss each claim, it is important to note that in the Tenancy Tribunal, applicants are generally required to establish the case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. I also note that whilst I may not have referred explicitly to all the evidence presented in this matter, it has been considered in the forming of this decision.

Are the tenants responsible for the damage to the premises?

As here, when damage is alleged, the rules relating to the burden of proof are slightly different to that described above. It is for the landlord to prove that any damage is not fair wear and tear and that it occurred during the tenancy. However, the onus then shifts to the tenant to prove that the damage was not intentionally done or was not caused by a careless act or omission 1 . In this case, there is evidence that is either contradictory or calls for the Tribunal to draw 1 See sections 40(2)(a), 41 and 49B Residential Tenancies Act 1986 (RTA) inferences. In that case the standard which the Tribunal adopts is the interpretation which a reasonable person would put on the evidence.
It is clear the damage occurred during the tenancy and that it is more than fair wear and tear given the scratches are many and deep. It is also accepted that it is not intentional damage. What I need to decide therefore is whether it is careless damage.
Carelessness is not defined in the RTA, but its usual meaning is the lack of care, negligence or lack of forethought. It can also be defined as “heedless or thoughtless” and can cover a situation of inadvertent lack of care.
The standard of care is the standard of an ordinary careful person, so it is an objective test. An ordinary careful person is not expected to take precautions against every foreseeable risk, but only against those risks that are reasonably likely to happen. Furthermore, the damage must be of a kind that can fairly and reasonably be considered as arising naturally from the breach or a probable result of the breach. This means that the damage will not be compensated if considered to be too remote.
The alternative to carelessness is by pure accident. This would be a situation where all reasonable care was taken, but the damage occurred anyway; therefore, care would not have prevented it.
The following is a picture of the damage. It spans nine floorboards over approximately 1 metre and some boards have multiple scratches. The scratches go across the grain of the wood.
[The landlord/s] evidence is that the company that laid the floors thought after looking at the pictures that the damage was most likely caused by moving something heavy across the floor. He says this is supported by the fact that some scratches are not in a straight line, there are multiple, and they do not connect.
Having considered all the evidence thoroughly and in applying the standard of proof, I find it more likely than not that the damage was caused by vacuuming as [The tenant/s] says. However, I do not find that [The tenant/s] was exercising the degree of care and attention that a reasonable and prudent tenant would in the circumstances. It appears to be a situation where there was an inadvertent lack of care taken. The length of the damage means that the vacuum was pushed a good distance with debris stuck in. The debris was so significant that it has gouged the floor, relatively deeply in parts, which I expect would have been felt if attention was being paid. The pattern also does not indicate just one push of a vacuum cleaner.
I consider that if [The tenant/s] had been taking due care, he would have noticed the debris at an earlier stage. On the basis that there are multiple scratches, and some are deep, the debris must have been so significant that it would or should have been visible before he commenced vacuuming the area. It is foreseeable that pushing sharp debris across a wooden floor is likely to scratch it. Further, the area is just next to a big mat, it is therefore possible that [The tenant/s] forgot to change the setting on the vacuum from that used for carpets, to that needed for wood floors. The difference is the height the vacuum is from the floor (higher for hard floors), and is necessary for this exact circumstance; so floors do not get scratched.
Therefore, I find that the evidence has established that the damage was caused carelessly. Accordingly, the tenants are liable for the repair costs. Where 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; see section 49B(3)(a) Residential Tenancies Act 1986 (RTA).
The insurance excess is $1000, being less than four weeks rent, and that is what is claimed. I must also consider whether the claim is reasonable, bearing in mind betterment and depreciation. A 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 taking into account depreciation, I note that the floors were laid in 2015 and had a 25 year warranty. They were therefore 30% into their estimated lifespan. The actual cost was $5,413.99, therefore even accounting for depreciation the cost is higher than the insurance excess.
I accept the evidence that if [The landlord/s] just had the boards sanded, he would have foregone the warranty on the boards and the cost would still have been in excess of the $1000 he claims. I find that the amount claimed is reasonable in the circumstances and does actually place the least cost possible on the tenants.
Accordingly, the amount is proven as sought. Should the landlord be liable for compensation for breaching the tenants’ quiet enjoyment?
The tenants claim compensation of $272.14 being the equivalent of three days rent to compensate them for the inconvenience of having the floors replaced during their tenure. They cannot understand the urgency at having the work done given their tenancy was going to end shortly after. They argue that the floors did not need to be done when they were, and [The landlord/s] had said he would wait for the work if they vacated within two months. 2
The actual work took two days and during that time they did not have access to the living room and a section of the kitchen. They say it was very noisy to the extent that they could not work there during the period.
[The tenant/s] also says it was an extreme response to have the floors replaced when they did given the age and condition of the rest of the house which he says is poorly maintained. He says they both work from home at times and he studies at home so the intrusion and disturbance over the two days of work was real and significant for them. They had to spend time moving some of their belongings out before and back after. He submits that their claim is reasonable given how much it would cost them to move elsewhere for the nights if they were to have avoided it fully.
[The landlord/s] does not consider he should have to pay compensation given the tenants caused the damage. He says he was at the whim of the contractors as to when the work could get done and although he tried to delay it until the tenants had left, he could not. As this was an insurance claim, he had to act on the quote the company accepted, therefore before it expired. He also says the work was not unduly intrusive as the wood was cut outside.
[The landlord/s] says he paid them $50 compensation for the use of their electricity which he considers more than sufficient. He also says that this application shows no awareness of the inconvenience to him that this damage, which was not his fault, has caused him. He has spent many hours finding the most cost-effective remedy and dealing with the matter.
Running a rental property is a business. Accordingly, the time it takes to deal with matters arising from a tenancy is just a part of running that business. I therefore do not accept the argument that the inconvenience to the landlord counters the inconvenience to the tenant.
The tenants gave notice to end the tenancy on 10 June and it ended on 10 July, and the work took place on 8 and 9 May. Therefore, until 10 June [The landlord/s] did not know if or when the tenancy would end, although I accept he had an understanding they would be moving at some point. He was therefore entitled to 2 Email 3 May undertake the work and did not have to wait for an unknown date. I do note here that I do not accept his submission that he was at the whim of the trades with respect to the timing as that is in contrast to his email mentioned previously. 3
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA. Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA. Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009- 019-001524, DC Hamilton, 26 February 2010.
There was certainly no harassment of the tenants in having this work done, however I accept they had some lack of amenity over this time. They were paying rent for a fully functional house but did not have one for this period.
The amount claimed however does not take into account that they still had the use of the rest of the house, particularly at night time, during the two days. It was only the living room which could not be used for two days and there was some noise impact of the work and inconvenience.
Having assessed the situation, I find it reasonable that compensation be given for the lack of a living room and some inconvenience for 2.5 days. I consider $100 for the lack of amenity sufficient and reasonable in the circumstances. Filing fee
As both parties have been partially successful in their applications it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall. Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. Both parties seek suppression and as both were successful to an extent in their positions, I approve both applications.

Tenancy Tribunal case 4595392 — Property damage

At a glance

Tenancy Tribunal case 4595392 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

Are the tenants responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Are the tenants responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions