What was Tenancy Tribunal case 4604289 about?

The tribunal order states: [The tenant/s] is to pay Lodge City Rentals Limited as Agent for Sharon Eade

How much money was awarded in case 4604289?

Property Damage: $174.80 awarded to landlord; Property Damage: $600.00 awarded to landlord; Removal Or Alteration: $207.00 awarded to landlord; Replace Doors Bedroom And Toilet: $503.70 awarded to landlord

What type of tenancy dispute was case 4604289?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4604289?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9625130-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4604289 about?

The tribunal order states: [The tenant/s] is to pay Lodge City Rentals Limited as Agent for Sharon Eade

How much money was awarded in case 4604289?

Property Damage: $174.80 awarded to landlord; Property Damage: $600.00 awarded to landlord; Removal Or Alteration: $207.00 awarded to landlord; Replace Doors Bedroom And Toilet: $503.70 awarded to landlord

What type of tenancy dispute was case 4604289?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4604289?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9625130-Tribunal_Order_Redacted.pdf.

31 Glendale Drive, Dinsdale, Hamilton 3204 Tenancy Tribunal Case 4604289 — Property damage

Claims and awards in Tenancy Tribunal application 4604289 — net $1,485.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repair window bathroom	$174.80	Repair window bathroom
Removal or alteration	$207.00	Removal or alteration
Replace doors bedroom and toilet	$503.70	Replace doors bedroom and toilet
Repairs to walls in hallway and bedroom	$600.00	Repairs to walls in hallway and bedroom
Net award	$1,485.50
Total payable by Tenant to Landlord	$1,485.50

Claims and awards in Tenancy Tribunal application 4604289 — net $1,485.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repair window bathroom	$174.80	Repair window bathroom
Removal or alteration	$207.00	Removal or alteration
Replace doors bedroom and toilet	$503.70	Replace doors bedroom and toilet
Repairs to walls in hallway and bedroom	$600.00	Repairs to walls in hallway and bedroom
Net award	$1,485.50
Total payable by Tenant to Landlord	$1,485.50

Order

[The tenant/s] is to pay Lodge City Rentals Limited as Agent for Sharon Eade $1,485.50 from the bond already held by the landlord, calculated as shown in table below.
The landlord is to release the balance of the bond of $434.50 to [The tenant/s] immediately.

Reasons

Mr Berryman appeared for the landlord. The tenant appeared.
The tenancy commenced on 23 August 2019 and ended on 14 April 2023. On 13 June 2023, the landlord filed a claim seeking compensation for damage and reimbursement of the filing fee.
The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).
To succeed with a claim for damage the landlord must prove that damage 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 of the Act.
Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
Where the damage is careless, and occurs after 27 August 2019, section 49B of the Act 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) of the Act.
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) of the Act. 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) of the Act.
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) of the Act.
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.
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.
In awarding compensation for damage, the Tribunal must also consider 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, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful
The landlord has produced an end of tenancy inspection report which includes photographs of the alleged damage. The tenant stated that they had not had sufficient time to consider the report. The Tribunal sent the report to the tenant on or about 18 September 2023. I consider that they have had ample opportunity to consider it. Mr Berryman has brought to the Tribunal photographs of the property he states were taken at the commencement of the tenancy. These have not been previously disclosed to the tenant. The tenant has questioned the reliability of this evidence, pointing out that the photographs are not dated. The tenant has referred the Tribunal to a photograph of a section of garden at the rear of the property, which they state was overgrown at the commencement of the tenancy yet is shown to be relatively clear of vegetation in the photographs.
Mr Berryman has not been the property manager for this tenancy, and only involvement has been at the end of the tenancy. Mr Berryman states that the photographs were uploaded to the landlord’s system on 29 August 2019, a few days after the commencement of the tenancy, and to the best of his knowledge accurately show the condition of the property at the commencement of the tenancy.
Determining whether damage in fact occurred during a tenancy requires an objective assessment, which involves making a before and after comparison. The best evidence is photographs showing the area or object at the commencement of the tenancy in its undamaged state and then photographs of the area or object in its damaged state. In the absence of a pre tenancy photographs, a written record, such as a property inspection report, will be the next best evidence. In this case, there is no written record of the condition of the property at the commencement of the tenancy.
After hearing from Mr Berryman, I am satisfied that the photographs produced more likely than not show the property at the commencement of the tenancy. In each of these claims, the issue has arisen as to whether there is sufficient evidence to make an accurate comparison. Damage to bathroom window
The tenant has filed written submissions in which they set out their responses to each of the claims.
Mr Berryman has referred to a photograph of the bathroom window at the commencement of the tenancy. The window appears intact. The end of tenancy photograph shows an empty window frame and a pane of glass leaning against the wall. The landlord replaced the window and is claiming $306.48. The tenant states that shortly before the end of the tenancy, they heard the window in the bathroom break. Upon investigation, the tenant states that they discovered feathers in the bathroom and concluded that a bird must have flown into and broken the window. The tenant stated they advised the property manager. The tenant states they obtained a piece of replacement glass from a friend who was a glazier and attempted to fit it themselves. At the end of the tenancy, they state that left the glass, anticipating that the landlord would use it. They did not.
Although a bird damaging a window is fair wear and tear and the landlord’s responsibility to remedy, I do not accept the tenant’s explanation as plausible. I am satisfied that the damage occurred during the tenancy and is more than fair wear and tear. The tenant has failed to satisfy the Tribunal that they are not liable. The tenant submitted that if they were to be liable, they should be so for the cost of replacing the glass like for like. The tenant stated that they believed the replacement glass they had purchased was the same and should have been used. Mr Berryman cannot provide an explanation as to why it was not. Setting the cost of the glass used by the glazier repairing the window aside, the labour and travel component of the invoice is $152.50 plus GST or $174.80. The Tribunal awards the landlord $174.80. Damage to power point, sensor light, and batten light.
Mr Berryman states that the claim concerning the batten light is not being pursued and is withdrawn. The landlord has produced a photograph of a power point in the lounge which has come away from the wall, and a sensor light on the outside of the property which they claim has been damaged. The landlord is claiming $166.00 plus GST to replace 5 power points, and $134.00 plus GST to replace the sensor light with a LED twin spotlight.
At first blush, the sensor light at the end of the tenancy appears to be different to the one shown in the pre tenancy photographs. The tenant states that it is the same. The tenant states that the light did not work at the commencement of the tenancy and that someone had attached a garden sensor light over the fitting. On closer inspection, this appears to have been the case. The tenant denied liability for the power point stating that the power point had simply come away from the wall. There is no photograph showing the power point at the commencement of the tenancy. As stated, there is no pre tenancy checklist, and Mr Berryman is unable to give direct evidence in the matter. The tenant submits that there is insufficient evidence of the condition of the sensor light and the power point at the commencement of the tenancy, and further, in the case of the power point to discount that the damage is not simply fair wear and tear. I accept the tenant’s submission. The landlord has failed to establish the claim to the required standard, and it is dismissed. Removal of alteration
There is no dispute that the tenant affixed sheets of clear roofing to the framing above the deck. The tenant claims that it was never raised as an issue during inspections and no request had been made of the tenant to remove it at the end of the tenancy. The landlord is claiming $207.00 to remove and dispose of the roof and the screws and nails that had been used to affix it.
The provisions of the Act allow for minor alterations with the landlords written consent. There is no evidence that written consent was obtained. The provisions of the Act state that any alteration must be removed, and the property reinstated to its original condition, unless there is an agreement to the contrary. I am not satisfied that there has been any agreement. The starting point is that the tenant is liable for the roof’s removal at the end of the tenancy. The question arises as to whether the property managers apparent acquiescence during the tenancy should bar the landlord from bringing a claim. There is insufficient evidence to establish estoppel or that the landlord has in any other way waived their right to bring a claim. The Tribunal awards the claimed amount to remove the alteration. Damage to doors
The landlord claims that the tenant damaged four doors, the door to the main bedroom and toilet which required replacing, the door to the toilet which also required replacing, and the doors to the laundry and bathroom which could be repaired. The tenant accepts liability for the bedroom, and toilet door. The tenant states they partially repaired the bedroom door but concede that the repair was likely inadequate. The tenant states that the lock to the toilet door malfunctioned and that someone kicked it open. Mr Berryman states that both doors required replacing. Having viewed the photographs, I accept this is the case.
The tenant denies liability for the other two doors, the ones that could be repaired, stating “the rest of the doors were not damaged.” The photograph of the doors concerned show visible minor damage. The doors concerned however are not clearly visible in the pre tenancy photographs. As stated, there is no pre tenancy checklist. There is also uncertainty concerning the location of these doors in the property. The onus is on the landlord to establish more likely than not that the damage occurred during the tenancy. Based on the evidence I cannot be satisfied to the required standard. The amount claimed to replace the door in the toilet and bedroom is awarded. The Tribunal declines to award damages for the other doors. Damage to floor in lounge
The landlord is claiming $ 384.10 to repair two small holes in the lounge floor. The landlord has produced photographs showing two small holes cut through the carpet and floor to the basement below. The holes are in the lounge and close to the skirting board. The holes appear to have been purposely formed and are of the type typically used to run cables for television or internet. The tenant denies liability, and states they have never noticed them before. The pre tenancy photographs do not assist. It cannot be ruled out that the holes have not been there for some time, predating the tenancy. There is insufficient evidence to be satisfied that this was damage occurring during the tenancy. The claim is dismissed. Damage to window latches and locks
The landlords claim initially included missing window latches. This has been withdrawn. Had it not been, there was, in any event insufficient evidence to be satisfied that any damage was more than fair wear and tear. The property is over 40 years old. Based on what can be made out in the photographs, the aluminium joinery and latches appear to be original. The claim includes $5.75 to replace a missing strike plate to the ranchslider leading to the deck. The strike plate is the metal fixing into which the locking arm of the ranchslider fits into. There is a close- up photograph of the ranchslider. It too appears to be an original feature. The tenant states they were able to close and lock the door at the end of the tenancy, suggesting that the strike plate must have been there. As with the claim for the window latches, I am not satisfied that the missing strike plate amounts to more than fair wear and tear. The claim is dismissed. Damage to walls
The landlord is claiming $4,600.00 plus GST to repair damage to walls throughout the property. The photographs produced show damage in the form of small holes in the hallway, lounge, and each of the three bedrooms, which have been plastered and sanded but not painted. There appear to be approximately 18. There are also 3 or 4 small nicks or paint tears to walls in one of the bedrooms.
The tenant referred to their written submissions in which they stated, apart from a small hole in the bedroom, that they denied liability. The tenant also stated that they had prepared their submissions prior to receiving the photographs. The submissions have been presented at the hearing for the first time; the photographs were provided to the tenant and Tribunal on 18 September 2023. The tenant then stated that they had repaired small holes left by drawing pins and picture hooks used to hang pictures themselves, and if they had known it was going to be an issue that they would have sought the assistance of a family member with experience to complete the work. The small nicks or tears in the bedroom are of the type caused when adhesive tape has been used, which when removed may result in damage.
The tenancy agreement included the following clause:
The agreement allows the tenant to affix things to the walls using tacks and picture hooks, not nails, or screws, and by using the named brand adhesive hooks as opposed to other adhesives, such as cellotape, which may cause damage. Although affixing things to the wall using picture hooks or tacks will cause damage, according to the clause, that damage will be treated as being fair wear and tear. The damage shown appears to be consistent with the tenant’s explanation. The tenancy lasted for 5 years. The use of picture hooks or tacks has in my view not been excessive. The damage is fair wear and tear.
However, some of the damage has occurred in areas where pictures would not have been placed, such as the lower part of the wall beneath the window in the bedroom, which the tenant has accepted liability for, and two or three areas that are lower down on a wall in the hallway. The nicks or tears have likely been caused by using non approved adhesive such as cellotape. This damage, I am satisfied, has occurred during the tenancy and is more than fair wear and tear. I award the landlord $600.00 to repair this damage.
Mr Berryman stated that the tenant had agreed for the release of the bond, and that it had been attributed to cleaning and rubbish removal. The tenant stated they had agreed for the release of the bond but had not agreed for it to be attributed to cleaning and rubbish removal. I am not satisfied that there was any agreement between the parties as to how the bond was to have been dealt with, and on that basis, it should be applied to any award made against the tenant. The balance of the bond should then be returned to the tenant. 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 I make no order for reimbursement of the filing fee. Name suppression
The tenant seeks 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. The tenant has been substantially successful defending the claims made against them and are granted name suppression. The landlord does not seek name suppression.

Tenancy Tribunal case 4604289 — Property damage at 31 Glendale Drive, Dinsdale, Hamilton 3204

At a glance

Tenancy Tribunal case 4604289 — Property damage at 31 Glendale Drive, Dinsdale, Hamilton 3204

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions