What was Tenancy Tribunal case 4604471 about?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 4604471?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4604471?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4604471?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9929652-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4604471 about?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 4604471?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4604471?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4604471?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9929652-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4604471 — Property damage

Order

The landlord’s application is dismissed.

Reasons

Both parties attended the hearing on 5 February 2024. Background
The tenancy ran from 19 March 2022 to 4 May 2023.
The tenancy agreement provided for a maximum of 3 residents at the property and for a maximum of 4 vehicles to be parked there, excluding the garage (which had space for about another 3 vehicles and a small workspace). The tenants are car enthusiasts, and the landlord knew this at the start of the tenancy.
The property was built in 1961 and has a lengthy driveway which is the only entry and exit point for vehicles. There is a wide concrete apron for parking adjoining the house. This leads to the driveway which is comprised of two parallel narrow strips of concrete with grass in between (the “concrete tracks”).
The ingoing inspection report dated 19 March 2022 shows some cracks on the concrete apron and does not show much of the parallel concrete tracks which lead from the apron to the street. The landlord says the driveway was flat and could be driven on at the start of the tenancy. Some of the overhead photographs show the tracks forming oblong shapes, i.e., the concrete had cracked and resembled paving stones.
A routine inspection report dated 27 October 2022 showed that the right-hand concrete track had broken into large square pieces and was uneven in height.
The exit inspection report dated 5 May 2023 showed the right-hand track in similar condition. The left-hand track appeared to be intact. In each inspection report, the apron area looks to be in a cracked, but useable condition, and does not appear to have deteriorated over the course of the tenancy.
The landlord obtained several quotes for the cost of replacing the driveway. The estimated cost was $9,904.38 and $12,017.50. The landlord claims the bond of $3,400.00 towards the cost of repairs. The tenants dispute liability. Relevant law
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. This can be defined as damage caused by the tenant, or their visitors, as a normal incident of the tenant’s fair (or reasonable) use of the premises for any of the purposes for which they were let.
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.
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 4 weeks' rent. The insurance excess was $1,000.00 and the weekly rent was $850.00.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to 4 weeks' rent.
In terms of establishing carelessness, the question is whether the tenant exercised the degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances.
Tenants are also liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. Analysis
There were 3 people living at the premises, each of whom owned a Ute. The tenants would use their Utes to tow vehicles on trailers to the racetrack. Friends would visit and bring their cars and sometimes their trailers. It follows that between about 2-4 tons of vehicle and trailer were regularly traversing along the driveway. As a result, the driveway was damaged during the tenancy. Certainly, its condition appeared to worsen in the inspection reports.
The tenants had an obligation to ensure that the premises were occupied principally for residential purposes. There was no suggestion they were running any kind of car business from the premises. Occupation and use for “residential purposes” must encompass a wide range of domestic and recreational activities. There is no obvious reason why an amateur interest in cars would change the residential nature of the tenancy.
At the start of the tenancy, the landlord probably did not understand that the tenants were part of a car club and would regularly transport cars to the racetrack; or that they had car enthusiast friends who would visit, sometimes towing their own vehicles. There were no contractual terms limiting the kinds of vehicles that could be brought onto the property. The landlord did understand that up to 7 vehicles could be parked at the premises, and therefore, would be using the drive. Some increased wear on the driveway could probably be expected.
The tenants were using the driveway for their vehicles in the normal way, as would be expected at any residential property, but were towing heavier loads than might ordinarily be the case. From the tenants’ perspective, any damage to the driveway was a normal incident of their reasonable use of the property, and such use was not prohibited by the tenancy agreement or the Residential Tenancies Act 1986.
The tenants said the driveway had been built without the required 100mm aggregate sub-base and reinforcing mesh. They submitted that the inadequate construction caused the damage. I take the landlord’s point that building requirements may have changed since 1961. A driveway built today would be more robust. The landlord submitted that the damage was more than fair wear and tear because the drive had lasted for 50 years without deteriorating at the rate seen during the tenancy. The driveway was likely about 60 years old, and the concrete tracks may have been close to the end of their useful life. From the start of the tenancy the driveway was old, somewhat broken where it turned into narrow concrete tracks, and proved to be unable to bear heavy loads from vehicles. Wet weather may have contributed to the deterioration.
With the benefit of hindsight there could have been doubt about the driveway’s capacity to withstand frequent heavy loads. However, I am not satisfied that the tenants should have known the driveway would be damaged by driving and towing their vehicles on it. One side of the concrete tracks looks to have remained useable. The tenants were using the driveway for legitimate recreational purposes, as they were entitled to do. It is not clear what they could or should have done to avoid damaging the driveway, apart from not use it. There is no evidence they (or their visitors) failed to exercise reasonable care in terms of the manner of their driving while entering and exiting along the drive.
I find that the damage to the driveway constitutes fair wear and tear. To the extent that, due to the weight of the vehicles and trailers traversing the driveway, the damage goes beyond fair wear and tear, I find that the tenants did not intentionally or carelessly damage the driveway. Name suppression
The tenants are granted name suppression, as requested, in accordance with section 95A of the Act.

Order

The landlord’s application is dismissed.

Reasons

Both parties attended the hearing on 5 February 2024. Background
The tenancy ran from 19 March 2022 to 4 May 2023.
The tenancy agreement provided for a maximum of 3 residents at the property and for a maximum of 4 vehicles to be parked there, excluding the garage (which had space for about another 3 vehicles and a small workspace). The tenants are car enthusiasts, and the landlord knew this at the start of the tenancy.
The property was built in 1961 and has a lengthy driveway which is the only entry and exit point for vehicles. There is a wide concrete apron for parking adjoining the house. This leads to the driveway which is comprised of two parallel narrow strips of concrete with grass in between (the “concrete tracks”).
The ingoing inspection report dated 19 March 2022 shows some cracks on the concrete apron and does not show much of the parallel concrete tracks which lead from the apron to the street. The landlord says the driveway was flat and could be driven on at the start of the tenancy. Some of the overhead photographs show the tracks forming oblong shapes, i.e., the concrete had cracked and resembled paving stones.
A routine inspection report dated 27 October 2022 showed that the right-hand concrete track had broken into large square pieces and was uneven in height.
The exit inspection report dated 5 May 2023 showed the right-hand track in similar condition. The left-hand track appeared to be intact. In each inspection report, the apron area looks to be in a cracked, but useable condition, and does not appear to have deteriorated over the course of the tenancy.
The landlord obtained several quotes for the cost of replacing the driveway. The estimated cost was $9,904.38 and $12,017.50. The landlord claims the bond of $3,400.00 towards the cost of repairs. The tenants dispute liability. Relevant law
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. This can be defined as damage caused by the tenant, or their visitors, as a normal incident of the tenant’s fair (or reasonable) use of the premises for any of the purposes for which they were let.
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.
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 4 weeks' rent. The insurance excess was $1,000.00 and the weekly rent was $850.00.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to 4 weeks' rent.
In terms of establishing carelessness, the question is whether the tenant exercised the degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances.
Tenants are also liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. Analysis
There were 3 people living at the premises, each of whom owned a Ute. The tenants would use their Utes to tow vehicles on trailers to the racetrack. Friends would visit and bring their cars and sometimes their trailers. It follows that between about 2-4 tons of vehicle and trailer were regularly traversing along the driveway. As a result, the driveway was damaged during the tenancy. Certainly, its condition appeared to worsen in the inspection reports.
The tenants had an obligation to ensure that the premises were occupied principally for residential purposes. There was no suggestion they were running any kind of car business from the premises. Occupation and use for “residential purposes” must encompass a wide range of domestic and recreational activities. There is no obvious reason why an amateur interest in cars would change the residential nature of the tenancy.
At the start of the tenancy, the landlord probably did not understand that the tenants were part of a car club and would regularly transport cars to the racetrack; or that they had car enthusiast friends who would visit, sometimes towing their own vehicles. There were no contractual terms limiting the kinds of vehicles that could be brought onto the property. The landlord did understand that up to 7 vehicles could be parked at the premises, and therefore, would be using the drive. Some increased wear on the driveway could probably be expected.
The tenants were using the driveway for their vehicles in the normal way, as would be expected at any residential property, but were towing heavier loads than might ordinarily be the case. From the tenants’ perspective, any damage to the driveway was a normal incident of their reasonable use of the property, and such use was not prohibited by the tenancy agreement or the Residential Tenancies Act 1986.
The tenants said the driveway had been built without the required 100mm aggregate sub-base and reinforcing mesh. They submitted that the inadequate construction caused the damage. I take the landlord’s point that building requirements may have changed since 1961. A driveway built today would be more robust. The landlord submitted that the damage was more than fair wear and tear because the drive had lasted for 50 years without deteriorating at the rate seen during the tenancy. The driveway was likely about 60 years old, and the concrete tracks may have been close to the end of their useful life. From the start of the tenancy the driveway was old, somewhat broken where it turned into narrow concrete tracks, and proved to be unable to bear heavy loads from vehicles. Wet weather may have contributed to the deterioration.
With the benefit of hindsight there could have been doubt about the driveway’s capacity to withstand frequent heavy loads. However, I am not satisfied that the tenants should have known the driveway would be damaged by driving and towing their vehicles on it. One side of the concrete tracks looks to have remained useable. The tenants were using the driveway for legitimate recreational purposes, as they were entitled to do. It is not clear what they could or should have done to avoid damaging the driveway, apart from not use it. There is no evidence they (or their visitors) failed to exercise reasonable care in terms of the manner of their driving while entering and exiting along the drive.
I find that the damage to the driveway constitutes fair wear and tear. To the extent that, due to the weight of the vehicles and trailers traversing the driveway, the damage goes beyond fair wear and tear, I find that the tenants did not intentionally or carelessly damage the driveway. Name suppression
The tenants are granted name suppression, as requested, in accordance with section 95A of the Act.

Tenancy Tribunal case 4604471 — Property damage

At a glance

Tenancy Tribunal case 4604471 — Property damage

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