What was Tenancy Tribunal case 4615809 about?

The tribunal order states: [The landlord/s] and Kerry Fraser as trustees of the D & K Fraser Family Trust are

How much money was awarded in case 4615809?

Bolt For Ranchslider: $32.30 awarded to landlord; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $89.99 awarded to landlord; Rent Arrears: $400.00 awarded to landlord; Walls and Doors: $425.00 awarded to landlord; Replace Wardrobe Hinges: $16.98 awarded to landlord; Smoke Alarms: $48.85 awarded to landlord; Water Rates: $888.37 awarded to landlord

What type of tenancy dispute was case 4615809?

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

Where can I read the official tribunal order for case 4615809?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9566866-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4615809 about?

The tribunal order states: [The landlord/s] and Kerry Fraser as trustees of the D & K Fraser Family Trust are

How much money was awarded in case 4615809?

Bolt For Ranchslider: $32.30 awarded to landlord; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $89.99 awarded to landlord; Rent Arrears: $400.00 awarded to landlord; Walls and Doors: $425.00 awarded to landlord; Replace Wardrobe Hinges: $16.98 awarded to landlord; Smoke Alarms: $48.85 awarded to landlord; Water Rates: $888.37 awarded to landlord

What type of tenancy dispute was case 4615809?

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

Where can I read the official tribunal order for case 4615809?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9566866-Tenancy_Tribunal_Order.pdf.

Unit 2, 9 Neumann Street, Kawakawa, Kawakawa 0210 Tenancy Tribunal Case 4615809 — Property damage

Tenantcheck Insights

Reasons

Background

Claims and awards in Tenancy Tribunal application 4615809 — net $1,401.49 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$400.00		Rent arrears
Water rates	$888.37		Water rates
Replace smoke alarms	$48.85		Replace smoke alarms
Replace wardrobe hinges	$16.98		Replace wardrobe hinges
Lock/key replacement: Back door lock	$89.99		Lock/key replacement: Back door lock
Bolt for ranchslider	$32.30		Bolt for ranchslider
Repairs: Walls and doors	$425.00		Repairs: Walls and doors
Filing fee	$20.44		Filing fee
Exemplary damages: Breach of duties in respect of		$500.00	Breach of duties in respect of
Filing fee		$20.44	Filing fee
Total award	$1,921.93	$520.44
Net award	$1,401.49
Total payable by Tenant to Landlord	$1,401.49

The tenancy began on 15 June 2021 and ended on 18 June 2023.

The tenant’s application raises issues relating to dampness / condensation / mould, healthy homes compliance, failure to lodge the bond, and breach of quiet enjoyment.

The landlord’s application seeks rent arrears, water rates, repairs, and exemplary damages under numerous headings.

The hearing took place in Kaikohe on 12 October 2023. Both parties attended the hearing. Tenant application Dampness / condensation / mould / healthy homes

Mr Walker-Buckman and Ms Bristowe submitted that: a. There is no fixed means of heating in the house. Mr Fraser provided them with a dehumidifier and insisted that they use it. They used it occasionally, but they found it expensive to operate and ineffective in warming the house. b. They experienced condensation on windows and mould in the house. c. There was a prevalent septic smell, particularly in cold weather.

Mr Fraser submitted that: a. Any mould / condensation issues that the tenants experienced was due to their failure to use the dehumidifier. b. None of the previous or subsequent tenants in the property have complained about mould or dampness. c. He was not obliged to provide a fixed means of heating.

The healthy homes standards apply to any tenancies that were entered into on or after 1 July 2021, and they will apply to every tenancy, irrespective of its commencement date, from 1 July 2025. This tenancy began on 15 June 2021. The healthy homes standards did not apply to this tenancy.

Landlords have a duty to provide and maintain the premises in a reasonable state of repair 1 .

The issues that the tenants have raised are inherently difficult to evidence.

I was not provided with any photographs of the mould and condensation. 1 Section 40(1)(b) Residential Tenancies Act 1986 (RTA)

There is no evidence of any leaks, or specific building issues that could be the cause of dampness / mould problems for this property.

Landlords cannot require tenants to use a dehumidifier. Tenants must take reasonable steps to ventilate ‘normal’ household moisture, but that is the extent of their obligation.

My finding is that: a. The healthy homes standards did not apply to this tenancy. b. The evidence available to me does not establish a significant or systemic problem with dampness / mould, and it does not establish that the landlord failed to maintain the premises in a reasonable state of repair.

Therefore, this part of the tenants’ application is dismissed. Bond

The tenants paid a bond of $1,520.00. The bond was paid ‘late’ (not at the commencement of the tenancy).

Mr Fraser acknowledged that he failed to pay the bond to the Bond Centre.

Mr Fraser submitted that he has been a landlord for many years and that his business approach is very much ‘paper based’. He is uncomfortable with using technology.

Around the time that this tenancy began, the Bond Centre stopped accepting cheques as a means of payment of the bond. Mr Fraser had only ever paid bonds by cheque, and he did not know any other way.

Landlords have a duty to forward any bond payments to the Bond Centre within 23-working days of receipt 2 .

A breach of this duty is an unlawful act. Exemplary damages of up to $1,500.00 can apply.

The Tenancy Tribunal may award exemplary damages if it is satisfied that an unlawful act was committed intentionally. In considering an award of exemplary damages the Tribunal must have regard to: 3 a. The intention of the person who committed the unlawful act; and b. The effect of the unlawful act; and c. The interests of the person against whom the act was committed; and d. The public interest. 2 Section 19(1) RTA 3 Section 109 RTA

I accept that this was an instance of administrative failure, and Mr Fraser had no intention to misuse the bond.

The failure to lodge the bond caused anxiety for the tenants, and there is a legitimate public interest in ensuring that landlords lodge bonds with the Bond Centre.

Having regard to these factors I will award exemplary damages of $500.00. Breach of quiet enjoyment

Landlords must not cause or permit any interference with the tenant’s reasonable peace, comfort, and privacy 4 .

The tenants raised three issues under this heading: a. That Mr Fraser contacted Mr Walker-Buchman’s workplace and spoke to his employer about matters relating to the tenancy. b. That Mr Fraser visited the property frequently and without notice. c. That Mr Fraser discussed their tenancy issues with his other tenants.

Mr Walker-Buchman submitted that it was very uncomfortable for him when Mr Fraser contacted his employer directly. He submitted that it was unnecessary for Mr Fraser to do this.

There would be few circumstances in which it would be appropriate for a landlord to telephone or visit the tenant’s place of work. I accept the tenants’ argument that, on the face of it, this is an interference with the tenant’s reasonable privacy.

In this instance the phone call took place after the tenancy ended. Once the tenancy ended, the specific legal duties that Mr Fraser owed to the tenant as a landlord also ended.

Therefore I must find that there is no basis for the Tribunal to make an award of damages in respect of this issue.

The landlords own several tenanted properties at this location, and Mr Fraser acknowledged that he is there reasonably frequently for maintenance and other purposes.

Landlords do not need to give notice if they do not intend to go inside the premises 5 .

Landlords can cause an interference with the tenant’s peace comfort and privacy if they are at the premises for no good (landlord-related) reason, or if they behave inappropriately when they are there. 4 Section 38(2) RTA 5 Section 48 RTA

In this instance the evidence about the frequency of Mr Fraser’s visits is limited and anecdotal, and I accept that Mr Fraser was at (or near) the property reasonably regularly for genuine landlord business relating to his other tenancies.

There is no evidence to suggest that Mr Fraser spoke or behaved inappropriately.

Mr Fraser denied that he discussed issues relating to this tenancy with his other tenants. Mr Fraser said that the opposite was true – he found out about issues / concerns relating to this tenancy from his other tenants.

Again, I accept the argument that it is generally inappropriate for a landlord to discuss matters relating to one tenancy with his or her other tenants. That action could constitute a breach of the tenant’s right to reasonable privacy. However, in this instance the allegation is not proven.

Therefore, there is no basis for an award of damages under this heading. Landlord application Rent arrears and water

The tenants accepted the claim for rent arrears ($400.00).

Water rates are owed. The landlord’s claim for $888.37 is a slight miscalculation (under-assessment) of the water rates owed.

Landlords must keep proper business records 6 .

I will award the $888.37 claimed. Repairs / replacement of chattels

Mr Fraser presented an invoice (number 4280674) detailing his claim for repairs and replacement chattels.

The tenants accepted the following claims: a. Replacement of two smoke alarms. b. Replacement of wardrobe hinges. c. Replacement of back door lock.

The tenants disputed the claim for replacement of lounge ranchslider bolt, repairs to walls and doors, replacement of toilet flush button, and re-staining of deck.

Mr Walker-Buckman and Ms Bristowe submitted that there was no bolt on the ranchslider from the beginning of the tenancy. Mr Fraser is adamant that it was there at that time. 6 Section 30 RTA

The landlord’s photograph shows small screw holes in the wall consistent with a slide bolt being in that location at some point.

The entry inspection report attached to the tenancy agreement contains some details of damage that was present at the beginning of the tenancy. The report was completed using black ink, and I note that the tenants signed the agreement in black. The other written information in the agreement is in blue ink and the landlord’s signature is in blue. This suggests that the tenants filled out the report.

The missing bolt is not noted on the report.

I am satisfied that this is sufficient evidence to establish (to the standard of “more likely than not”) that the bolt went missing during this tenancy.

Mr Walker-Buckman and Ms Bristowe acknowledged that there was some damage to walls during the tenancy which they attempted (in good faith) to repair. They disputed Mr Fraser’s allegations about the extent of damage.

I am satisfied that the total amount that Mr Fraser has claimed for repairs ($425.00) is a reasonable and conservative assessment of the cost of tidying up the repairs that the tenants attempted. I will hold the tenants liable for this cost.

Mr Walker-Buckman submitted that the deck became slipper and dangerous during the tenancy. He borrowed a water blaster from a friend and cleaned the deck.

Mr Fraser alleges that in doing so Mr Walker-Buckman caused gouging damage to the deck. His claim seeks the cost of sanding and re-staining the deck.

Mr Walker-Buckman denied that he caused damage. He submitted that only rotten or unsound timber would have been removed by the water blasting.

Mr Fraser has the burden of proof. I was not provided with any evidence of the alleged damage. The claim is not proven.

The broken toilet flush is more likely to be a maintenance / wear and tear issue rather than careless or intentional damage by the tenants. The tenants are not liable for this cost.

The landlord has the burden of proof to establish that damage occurred during the period of the tenancy. Exemplary damages

Mr Fraser detailed ten issues in the “exemplary damages” part of his application.

Exemplary damages are only available where the Residential Tenancies Act 1986 (RTA) declares a particular breach to be an “unlawful act”. If a breach is not declared to be an unlawful act, there could be a claim for compensation (for example, repair of damage to the premises) but no exemplary damages. Exemplary damages are essentially a fine.

Almost all of the issues raised by Mr Fraser under this heading are either: a. Arguable breaches of the RTA, but not breaches that are declared to be unlawful acts, and therefore exemplary damages are not available; or b. Not breaches of the RTA even if proven

The one issue that could give rise to a claim for exemplary damages is “harassment of other tenants / neighbours”.

Tenants must not cause or permit any interference with the reasonable peace comfort and privacy of the landlord’s other tenants or of other persons in the neighbourhood 7 .

A breach of this duty, in circumstances that amount to ‘harassment’ of the other tenants or neighbours, is an unlawful act 8 . Exemplary damages of up to $3,000.00 can apply.

Mr Fraser provided a letter from the tenant of a neighbouring unit about an incident between her partner and Mr Walker-Buckman.

Mr Walker-Buckman and Ms Bristowe had a different perspective about that incident.

There is no independent evidence available to me.

Even if there was independent evidence to support the other tenant’s version of those events, that single incident could not be characterised as “harassment”.

There is no basis for an award of exemplary damages. Filing fee, name suppression, bond

Both parties have been partially successful in their own applications, and each is entitled to recover the filing fee.

At the hearing both parties requested name suppression.

The Tribunal may grant name suppression if a party has been “substantially successful” in the proceedings, and may also grant name suppression “having regard to the interests of the parties and to the public interest” 9 .

In this instance, neither party has been substantially successful in the proceedings, and there are no particular reasons why name suppression would be appropriate. The requests for name suppression are not granted. 7 Section 40(2)(c) RTA 8 Section 40(3A) RTA 9 Section 95A RTA

The landlord’s proven claim totals $1,921.93. The tenants’ proven claim totals $520.44.

The net result is that the tenants owe the landlord $1,401.49.

The landlord is holding the bond of $1,520.00.

The landlord will retain $1,401.49 from the bond. The landlord will pay the balance of $118.51 to the tenants.

Reasons

Background

Claims and awards in Tenancy Tribunal application 4615809 — net $1,401.49 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$400.00		Rent arrears
Water rates	$888.37		Water rates
Replace smoke alarms	$48.85		Replace smoke alarms
Replace wardrobe hinges	$16.98		Replace wardrobe hinges
Lock/key replacement: Back door lock	$89.99		Lock/key replacement: Back door lock
Bolt for ranchslider	$32.30		Bolt for ranchslider
Repairs: Walls and doors	$425.00		Repairs: Walls and doors
Filing fee	$20.44		Filing fee
Exemplary damages: Breach of duties in respect of		$500.00	Breach of duties in respect of
Filing fee		$20.44	Filing fee
Total award	$1,921.93	$520.44
Net award	$1,401.49
Total payable by Tenant to Landlord	$1,401.49