What was the outcome of Tenancy Tribunal case 4612129?

The tribunal order states: Barnard Escano and Cristina Escano to pay Avionne Vincent As The Trustee

How much money was awarded in case 4612129?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $381.42 awarded to landlord; Dulux Paint: $198.18 awarded to landlord; Repaint Walls: $543.79 awarded to landlord

What type of tenancy dispute was case 4612129?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4612129?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9764767-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4612129?

The tribunal order states: Barnard Escano and Cristina Escano to pay Avionne Vincent As The Trustee

How much money was awarded in case 4612129?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $381.42 awarded to landlord; Dulux Paint: $198.18 awarded to landlord; Repaint Walls: $543.79 awarded to landlord

What type of tenancy dispute was case 4612129?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4612129?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9764767-Tenancy_Tribunal_Order.pdf.

Unit/Flat 4, 2 The Promenade, Takapuna, Auckland 0622 Tenancy Tribunal Case 4612129 — Property damage

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Reasons

Claims and awards in Tenancy Tribunal application 4612129 — net $1,143.83 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears (between 10 March and 12 March 2023	$381.42	Rent arrears (between 10 March and 12 March 2023
Repairs: Dulux paint	$198.18	Repairs: Dulux paint
Repairs: Repaint walls	$543.79	Repairs: Repaint walls
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,143.83
Total payable by Tenant to Landlord	$1,143.83

Both parties attended the hearing.

Mr and Mrs Escano are a couple who have three children. They started renting the property on 27th March 2021 and moved out on 11th March 2023. They received permission from the landlord to come back to the property on 12th March 2023 to clean it.

Ms Vincent, the landlord, has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. The case

The dispute revolves around the refund of a bond, the cleanliness of the property, and damage to the premises.

The bond, amounting to $2,780, was initially not lodged with the Bond Centre, but was later confirmed to have been lodged by Ms. Vincent on 6 December 2023. The tenants, Mr. and Mrs. Escano, are seeking a refund of this bond. Ms. Vincent, however, had filed a cross-application under section 22B(2) of the Residential Tenancies Act, arguing that the bond should be kept in her favour due to issues with the property when the tenants vacated.

Ms. Vincent brought up the issue that she was unable to show the property to prospective tenants before the end of the current tenants' tenancy. She said that despite requesting consent from the current tenants, they did not respond, which prevented her from showing the property to potential tenants. Therefore, she could only start showing the property to the new tenants after Mr and Mrs Escano vacated the property. As a result, she suffered a loss of rental income amounting to $2,780 over four weeks. However, Mrs. Escano said she informed Ms. Vincent via text message that she gave consent to Ms Vincent to bring prospective tenants to view the property.

Ms Vincent raised further issues of a broken shower head, a voile curtain removed from its place, a damaged Westinghouse 8” large element, wrong paint used to fix the damage on the wall, and odour from the upstairs carpet which Ms Vincent claims was damaged by the tenants, and a mould problem, which the tenants argue was due to a lack of a heat pump in the property. Ms. Vincent also claims that the tenants did not adequately clean the property upon vacating, leading to additional cleaning costs.

The tenants, Mr. and Mrs. Escano, dispute these claims except for damage to the wall.

The tenants said they informed Ms. Vincent about the flood and the resulting mess. Ms Vincent asserts that the property was not flooded, but some water came through the back door, which was not significant enough to involve the insurance company or submit a claim for flooding. Ms Vincent also disputed the claim that the floor downstairs was flooded. The tenants clarified that the odour was in the upstairs area, not downstairs.

Ms. Vincent alleges that the tenants used the wrong paint to hide damage to the walls, which worsened the damage. The tenants admit to trying to paint over scratches caused by their son.

How much is owed for rent and water rates?

The tenants vacated the property on 11 March 2023 but had possession of the property for an additional day to clean the property.

The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.

However, Ms Vincent said that she was not pursuing the tenants for the outstanding water rates of $973.17.

Accordingly, the rent arrears to pay is 381.42. Loss of rental income

Ms Vincent argued that the tenants were responsible for the delay in putting new tenants into the property.

Ms Vincent relied on section 48(3)(a) of the Residential Tenancies Act (“RTA”). This section states, “With the prior consent of the tenant, the landlord may enter the premises at any reasonable time for the purpose of showing the premises to prospective tenants.” (Italic mine).

Ms. Vincent's desire to maximise rental income is unsurprising as a landlord. However, Section 48(3)(a) of the Residential Tenancies Act (RTA) clearly states that Ms. Vincent may only bring prospective tenants to view the property "with the prior consent of the tenant". This means the tenants are not obligated to permit Ms. Vincent to bring potential renters to the property.

In my view, Ms. Vincent did not have a legal basis for wanting the tenants to pay for the loss of rental income. Under these circumstances, the loss of rental income should be considered a business operating cost, regardless of whether Mrs. Escano sent a text message to Ms. Vincent consenting to allow prospective tenants to view the property.

Accordingly, Ms Vincent’s application for loss of rental income for four weeks is declined. Standard of proof

Ms Vincent must prove all elements of the claim on the balance of probabilities, i.e., more probable than not.

In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while ‘balance of probabilities’ is a constant standard: It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it”.

This approach was confirmed by the majority of the Supreme Court in Z v Dental Complaints Assessment Committee [2008] NZSC 55, where the Court stated: [102] ... In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case. Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.

Section 97(4) Residential Tenancies Act 1986 provides that: ... the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law

It follows that, although the Tribunal is not bound by the usual rules of evidence when admitting evidence, where the allegation is serious, it is likely to require stronger evidence before finding the claim proved on the balance of probabilities.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenants must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.

Ms Vincent submitted photos before the tenants cleaned the house on 12 March 2023. These photos provide evidence that the premises would need to be cleaned.

The tenants submitted photos they took after they cleaned the house.

After reviewing both parties’ photos I am satisfied that the tenants left the premises reasonably clean and tidy.

Accordingly, I do not consider it appropriate to compensate Ms Vincent for Exit Mould she purchased from Pak n Save.

The burden to leave the premises reasonably clean and tidy rests with the tenants. If Ms Vincent decides to offer cleaning materials to the tenants, the cost must be borne by Ms Vincent.

Is the tenant responsible for the damage to 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. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

Where the damage is careless, and occurs after 27 August 2019, section 49B RTA 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) RTA.

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) RTA. 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) RTA.

Tenants are liable for the cost of repairing the 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) RTA.

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.

I decline to award compensation for the following claims: Showerhead

Ms Vincent showed me a photo she received from Mrs Escano. The photo showed a hose without a showerhead. It was unclear whether the showerhead had been intentionally damaged or if it was the result of fair wear and tear or carelessness during use.

Accordingly, Ms Vincent did not satisfy me on the balance of probabilities that the damage was not fair wear and tear. Steam clean carpets

Ms Vincent submitted that the house had an odour from upstairs. Because of this odour, she instructed a professional carpet cleaner to steam clean the upstairs carpet.

The tenants said the odour was from the downstairs carpet. The tenants further submitted that the odour resulted from carpet damaged by the flood.

There was a dispute over whether the odour came from the upstairs or downstairs carpet.

In my view, Ms Vincent failed to satisfy me that the odour came from upstairs because the professional carpet cleaner recorded in the invoice “2 bedroom house carpet steam clean @4/2 The Promenade, Auckland”.

The professional carpet cleaner did not record any finding of odour before the carpet was steam cleaned.

Ms Vincent did not suggest the tenants damaged the upstairs carpet besides the odour. Accordingly, Ms Vincent failed to persuade me on the balance of probabilities that the upstairs carpet needed steam cleaning due to the odour.

Accordingly, I decline to award compensation for steam cleaning the upstairs carpet. Voile curtain

Ms Vincent said the tenants removed one of the curtains and put it in a wardrobe. Ms Vincent said she had to replace the curtain because it had mould on it and there was some damage to the hem.

I asked Ms Vincent if she could show me photo evidence. Ms Vincent said “No, I don’t have a photograph of the voile curtain. No, I don’t. It was already down at the time it was taken.”

I acknowledge Ms Vincent said she had replaced the voile curtain because of the damage and mould. But without a photo or photos, I had no way of making a judgment other than speculating what might be the case. It would not be right for me to speculate because the burden of proof rested with Ms Vincent.

Accordingly, I am not satisfied. on the balance of probabilities, the tenants are liable for the damage to the voile curtain.

I decline to award compensation for the cost of replacing a voile curtain. Westinghouse 8”” element

Ms Vincent discovered one of the elements did not work.

Mrs Escano said that when she vacated the premises, all elements on the stove worked fine.

Ms Vincent did not suggest the tenants intentionally damaged one of the elements on the stove. This being the case, there is no evidence before me to prove the tenants carelessly or intentionally damaged the element. Ms Vincent could only point out that one of the elements was not working, and she had to replace it.

In my view, Ms. Vincent could not exclude the possibility that one of the elements was not working due to fair wear and tear.

Accordingly, I decline to award compensation for replacing an element. Damage caused by the tenants

The following damage was caused during the tenancy: a. Wall.

The tenants admitted that their son had damaged the wall. They also acknowledged that they tried to fix the problem by repainting it with a slightly different colour of paint.

The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.

The amounts ordered are proved.

It is appropriate to award the cost of paint in full. I have applied 35% depreciation to the repair and repaint the damaged wall.

I have taken into account 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, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Bond not lodged with the Bond Centre

Barnard Escano and Ma Cristina Escano claims the landlord has not lodged 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) Residential Tenancies Act 1986.

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 Residential Tenancies Act 1986.

Ms Vincent accepted she lodged the bond with the Bond Centre on 6 December 2023. Ms Vincent did not accept that she deliberately withheld the bond and did not intend to lodge it with the Bond Centre until the tenants filed a complaint.

Ms. Vincent explained: There was a misunderstanding between the bond to be refunded from their former tenancy, the amount to be paid by. In the end, Mr. Escano says the former landlord paid the entire bond. But we didn't appreciate when the money came in. The money that came in was exactly four weeks rent. But we didn't understand that when it came in, whether it was rent or whether it was rent or whether it was bond. I see a whole lot was classified. Got put into the rent account. It wasn't into the bond, and that's what happened. It was simply a mistake in terms of the amounts that we received from the [previous owner], even though he sent emails, and I've seen those emails. The fact is, the bond wasn't paid into and was only paid recently. And it was only when we. Even when [Mrs Escano] claimed the bond recently, back in March, we contacted Tenancy Bond to find out where the bond was. We didn't realise even at that stage that we were, in fact, holding the bond. It had been all this time. It was just a genuine mistake.

I find Ms Vincent’s explanation credible because the property ownership was transferred from the previous owner to Ms Vincent when Mr and Mrs Escano were the tenants.

Accordingly, I do not accept Ms Vincent’s failure to lodge the bond with the Bond Centre was deliberate. I do not consider Ms Vincent to have committed an unlawful act. Filing fee

Because Avionne Vincent As The Trustee For The A J Vincent Trust has substantially succeeded with the claims I have reimbursed the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4612129 — net $1,143.83 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears (between 10 March and 12 March 2023	$381.42	Rent arrears (between 10 March and 12 March 2023
Repairs: Dulux paint	$198.18	Repairs: Dulux paint
Repairs: Repaint walls	$543.79	Repairs: Repaint walls
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,143.83
Total payable by Tenant to Landlord	$1,143.83