What was Tenancy Tribunal case 4616889 about?

The tribunal order states: The Tribunal orders suppression of the names and identifying details of [The

How much money was awarded in case 4616889?

Cleaning: $345.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Painting: $2,550.00 awarded to landlord; Property Damage: $2,753.01 awarded to landlord; Property Damage: $230.00 awarded to landlord; Property Damage: $205.00 awarded to landlord

What type of tenancy dispute was case 4616889?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4616889?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9605008-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4616889 about?

The tribunal order states: The Tribunal orders suppression of the names and identifying details of [The

How much money was awarded in case 4616889?

Cleaning: $345.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Painting: $2,550.00 awarded to landlord; Property Damage: $2,753.01 awarded to landlord; Property Damage: $230.00 awarded to landlord; Property Damage: $205.00 awarded to landlord

What type of tenancy dispute was case 4616889?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4616889?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9605008-Tribunal_Order_Redacted.pdf.

2228 Makino Road, Halcombe, RD 9, Halcombe 4779 Tenancy Tribunal Case 4616889 — Property damage

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Reasons

Claims and awards in Tenancy Tribunal application 4616889. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Painting	$2,550.00	Painting
Carpet cleaning	$345.00	Carpet cleaning
Carpet replacement	$2,753.01	Carpet replacement
Blind replacement	$230.00	Blind replacement
Glass replacement	$205.00	Glass replacement
Filing fee	$20.44	Filing fee

Both parties attended the hearing.

The landlord has applied for compensation, exemplary damages and reimbursement of the filing fee following the end of the tenancy. This relates to alterations [The tenant/s] made without the landlord’s consent.

[The tenant/s] seek compensation for their efforts in improving the property during the tenancy.

[The tenant/s] filed many photos and several statements covering their experience during the tenancy. The discussion below focuses on the evidence relevant to the parties’ claims. Background

The tenancy started on 3 April 2020 and ended on 27 March 2023 as a result of [The tenant/s]’ giving notice. Throughout the tenancy [The tenant/s] looked after the property and worked hard to create a home. In many ways they were excellent tenants and property inspections were favourable.

Unfortunately, their efforts on the premises exceeded their rights and obligations as tenants. They seem to have treated the property as their own and undertook some extensive redecoration and alterations for which both parties now seek compensation.

The owners had undertaken some refurbishments in 2014 when they gibbed and painted the interior and put in new carpet.

When [The tenant/s] took possession of the property in April 2020, New Zealand was in the first nationwide “lockdown” as a result of the COVID-19 virus. The entry inspection was conducted on 20 May 2020. The landlord relied on the photographs of the end of the previous tenancy to show what the property looked like at the start of this tenancy.

In November 2020 [The tenant/s] asked the property manager if they could paint the kitchen doors. At that time, it was a cream colour with white doors. They showed the property manager the proposed olive-green colour and approval from the owners was obtained.

Just before Christmas 2020, it was agreed that [The tenant/s] could paint the master bedroom and the bathroom blue.

When the property manager conducted an inspection in January 2021, she discovered that the kitchen had been painted three colours; green, maroon and gold. 1 This was not what had been consented to. However, the owners have not sought any compensation for this because they have decided to renovate the kitchen.

The bathroom had not been painted, but the master bedroom had been painted two shades of blue, dark at the bottom and light at the top. 1 The photos attached to the inspection report of 7 October 2020 would indicate that this painting had already been done by then.

By this time [The tenant/s] had also removed the carpet in the hallway and bedroom 2. The property manager said that the carpet had been in very good condition. When, at the January 2021 inspection, she asked to see the carpet that had been removed, [The tenant/s] said that it was rotten and she had disposed of it. [The tenant/s] said that she had lifted a corner of the carpet and it broke off in her hand.

Ms Wind says that following this, she issued a notice telling [The tenant/s] not to undertake any further work. This has been referred to as a “breach notice”. For the sake of clarity, I note that it was not a 14-day notice to remedy a breach as is often given under section 56 of the Act. [The tenant/s] were not being asked to return the premises to their former state. Rather, it was a reminder of their obligations not to carry out any further work on the property. The letter dated 21 January 2021 said: ... As a result of this inspection, I have advised the owners that the carpet has been uplifted due to you determining that the carpet was rotten. With this in mind, we have arranged [Pest Care] to investigate this further to determine there is no additional damage to the rest of the carpet in the house. The owners are investigating a[sic] the potential of an insurance claim to replace the carpet moving forward, and would like to advise you if in the event there is no evidence of weevils in the property you may be liable for the excess or replacement carpet. In the interim we would like to advise you to please not carry out anything (sic) further work to the property without prior written consent from the owner. ...

[The tenant/s] say they did not receive the letter, but that Ms Wind told them they were in trouble.

[The tenant/s] then undertook the following alterations to the property: a. In Bedroom 1 (originally a cream colour) the tenant placed beading along the lower part of the wall and painted it maroon. b. In Bedroom 2 they put a dog door in the lower windowpane of the French door and had painted the room blue. The carpet had been removed prior. c. In the hallway, they placed beading along the lower part of the walls and painted it maroon. d. Beading was also placed around the lower part of the wall in the lounge and painted maroon. e. The same treatment was applied to the dining room. f. The laundry was painted multiple colours.

It also transpired that there were some paint marks and stains on the carpet in the Master Bedroom (Bedroom 3) and on the carpet in Bedroom 4.

There are photographs showing lifted wallpaper, which [The tenant/s] say was like that when they moved in, but there is no claim in relation to those.

[The tenant/s] had also undertaken work outside the house, in particular, removing trees, installing a pond and erecting a carport. These issues are discussed further below.

In summary, the claims for the landlord cover compensation for replacement carpet, repainting of rooms, curtains, and exemplary damages for removal of the macrocarpa.

In reply, [The tenant/s] have claimed $50,000 for all their efforts. Landlord’s claims for damage to the property

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 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 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. Landlord and tenant responsibilities

[The tenant/s] claim that the work they did on the property was both necessary and enhanced the premises.

The Residential Tenancies Act 1986 sets out the rights and responsibilities of parties to a tenancy agreement.

The landlord’s obligations under section 45 include maintaining the premises in a reasonable state of repair having regard to the age and character of the premises and complying with all requirements in respect of buildings, health, and safety under any law. Under section 45(1)(d), the landlord must compensate the tenant for any reasonable expenses incurred by the tenant in repairing the premises where: a. the state of disrepair has not arisen by the tenant’s breach of the tenancy agreement AND b. the state of disrepair is likely to cause injury to persons or property or is otherwise serious and urgent AND c. the tenant has given the landlord notice of the state of disrepair or made a reasonable attempt to do so.

Under section 40(1)(d), the tenant must notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs, and under section 40(2), the tenant shall not intentionally or carelessly damage or permit any other person to damage the premises.

Section 42(1) says that the tenant must not make any renovation, alteration or addition of or to the premises unless it is in accordance with the tenancy agreement or the landlord has given written consent.

Sections 42A and 42B cover tenant’s fixtures and minor changes. They also require a written request and written consent, but the landlord must not withhold consent unreasonably. On or before the end of the tenancy, the tenant must return the premises to a condition that is substantially the same as the condition the premises were in before the minor change was made. These sections came into force on 11 February 2021. Painting

The landlords seek $8,500.00 compensation for painting required at the end of the property.

The landlords say that the house had to be repainted because the efforts of the tenant were not done to a satisfactory standard.

The landlord provided a quote dated 1 May 2023 from [Painter] for preparation, repair and painting of the lounge, dining room, four bedrooms and hallway. The quote was for $8,500.00, which is the amount now claimed.

They produced a letter dated 20 August from [Painter], a part-time painter decorator of 25 years who was asked to repaint the ceiling and walls. He said that the wooden strips that were attached to the walls (the beading) were both screwed and secured with a very strong wood glue. He attempted to remove them, but the level of force required would have severely damaged the gib underneath. He found multiple paint runs and the paint used was not suitable for internal painting, making it impossible to paint with [brand] interior paint. He had to use an oil-based paint. He also noted that in some arrears it appeared only one coat had been applied, leaving it very streaky. Because of the dark colour used, the repaint required 4 coats of paint to cover adequately.

The photographs provided are consistent with his description, showing streaky maroon paint and brown paint as well as drips and brush strokes of paint encroaching on the stained/varnished tongue and groove skirting board.

The landlord also provided photographs showing the premises repainted following the end of the tenancy.

[The tenant/s] say the fact the entire property was repainted in 6 days shows that it was not a problem to paint over, that they would have expected the lounge alone to take 6 days because it was so big. They doubt the expertise of the painter.

They deny using oil-based paint and had been told by [Hardware Store] that they paint sold to them was suitable for indoors.

[The tenant/s] say that the property manager did not comment when they were buying all the paint: “And they loved it all!” There were no complaints over the months [The tenant/s] were doing it. A couple of drips on a skirting is not significant damage. They did not paint any door frames.

For the bedroom, which was originally red, they bought large sheets of plywood (referred to by the landlord as beading) that went at least halfway up the wall and covered the worst of the ripped wallpaper. They beaded around the top in Rimu and painted the boards dark blue which helped soften the red and tone it down a bit. They could not afford any more plywood for the last wall and so they just painted it up to the same height in dark blue, with the beading.

I am satisfied that the tenant has made alterations without consent. Even if they had obtained consent, under section 42A(4), they were required to return the premises to a condition that is substantially the same as the condition the premiss were in before the change was made.

I do not need to find whether [The tenant/s] had used oil-based paint.

[The tenant/s] say that [The tenant/s] had previously done a course in interior design, is an artist and knows colour. That is not relevant to my determination that the premises required repainting, because: a. The beading in any of the rooms was a significant alteration. b. [The tenant/s] had altered the colour of multiple rooms premises. c. The painting and application of the beading had not been done in a workmanlike fashion. That is evident from the photographs.

These were intentional changes, and therefore the full cost of repainting is the starting point for compensation.

I have taken into account depreciation. The landlords had repainted in 2014, which was 9 years earlier and so have had the benefit of that during that time. The condition of the property was reasonable and so it is unlikely to have required a full repaint in 2023 but for the actions of the tenant. I have decided that [The tenant/s] should pay 30% of the cost of repainting, which comes to $3,400. Carpet

The landlords seek $4,100 being the insurance excesses they had to pay for the hallway, bedroom, replacement carpet.

[The tenant/s] have removed and disposed of carpet in the hallway and bedroom 2 without permission. I find that this was a renovation or alteration under section 42(1). It is more than minor, and the tenant did not have written consent from the landlord.

[The tenant/s] did not dispute the paint shown in photographs of and bedrooms 3 and 4 but knew nothing about the yellow stain in bedroom 3.

The landlord produced an invoice for $345 for carpet cleaning, but the paint could not be removed. I find that the landlords should be compensated for the removal of the carpet and the paint damage. [The tenant/s] are ordered to pay $345 for the initial attempts to remove the paint.

Although the insurance excess recorded in the tenancy agreement was $650, the excesses charged by the insurance company were recorded in an email from [Insurance Company 1] claims assessors to the insurers, [Insurance Company 2] Claims as: Bedroom one standard excess of $1,800 / Hallway and bedroom tow second act normal excesses at $4100. There should be two excesses imposed as paint stains and carpet removal are two different events. Carpet quote at $5506.02 less excesses ==settlement at $1406.02

The communication is a little hard to follow, not helped by people assigning different numbers to the bedrooms. Often insurers charge one excess per room. On this occasion it seems they have charged one excess of $1,800 for paint stains and one of $2,300 for carpet removal.

No invoice for replacement carpet has been provided. It is not clear that it has yet been replaced. There appears to be no carpet in the hallway in the photographs of 23 May 2023.

I have approached the assessment of fair compensation as follows: a. The tenant’s liability for the accidental damage is limited to the lesser of the insurance excess ($1,800) or the four weeks’ rent which was $510 per week, $2,080 for four weeks. That means that I can order no more than that amount for accidental damage. b. Paint spillage in bedroom 3 and bedroom 4 is accidental and therefore [The tenant/s] should pay the insurance excess for each of these rooms, (although it is not clear from the above email that both of these were claimed). Given the entire carpet quote was $5,506.02, it begs the question of why one would pay an excess of $1,800 for one bedroom. It is not clear that a claim has been made for both bedrooms. c. Carpet removal from two of those three rooms (the hall and bedroom 2) was intentional and [The tenant/s] are liable for the full replacement cost of those, less depreciation. Two-thirds of the carpet quote of $5,506.02 is $3,670. d. The excess payable for the entire carpet was $4,100, which is 74.5% of the replacement cost. e. 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. f. The carpet was 8 years old. Using the IRD depreciation guidelines, 2 its book value of carpet in rental properties at the end of 8 years is zero. That does not mean that it has no value to the owner. The landlords have had the benefit of the carpet for 8 years. However, it is evident from the photographs that the carpet was in good condition at the start of the tenancy and but for [The tenant/s]’ actions, it would not have required replacement. Accordingly, I have determined that fair compensation for the 2 IRD General Depreciation Rates IR265 landlord is for [The tenant/s] to pay 50% of the cost of replacement, which comes to $2,753.01. Glazing

[The tenant/s] placed a pet-door in one windowpane of the French door. The landlords seek compensation for reglazing.

[The tenant/s] say they that when they moved in, one of the previous tenants had broken a window and left a plain pane of glass. There was a pet-door in one pane. [The tenant/s] had put the dog-door in another pane of glass and at the end of the tenancy left a piece of plywood in that pane. They said they left a plain pane there.

The landlord said that if the previous tenants had left a broken window, then the bond would not have been paid out. Although the landlord provided photos dated February of an inspection from the previous tenancy, there are no photos of the exit inspection for that tenancy, and as noted above, no photos of the entry inspection for this tenancy because of Covid restrictions.

[The tenant/s] needed to return the premises to their former state. They provided no photographs of the broken window, the unbroken pane that was there at the start or end of the tenancy or any communication with the landlord about the issue of the broken window. They must pay the reglazing cost of $205.00. Curtains

The landlords claim $920 for curtains. They have submitted an invoice from [Cleaning Company] for “cleaning services and curtain installation” for this amount. At the hearing, Ms Wind said this was for 2 roman blinds. She said that at the start of the tenancy, there were dark grey curtains throughout the property as shown in the photographs of bedrooms 1 and 3.

[The tenant/s] say that during the tenancy they took down some of the curtains which were marked and faded and put them in the large linen cupboard. When they moved out, they hung the old ones back up and left some that they had bought as well. She said that there were some striped curtains and she was not sure how old they were, and that they were originally in the house and that she left the grey curtains there.

In fact, it seems that the claim relates solely to two roman blinds that were in the kitchen.

[The tenant/s] says the string on the roman blind in the kitchen broke and she tried to fix it, that it was “sticky and gunky” and left “it” in the shed and put some pretty ones of hers. She said that this would have been seen at inspections.

It would have been helpful to have photographs of the roman blinds in situ at the start of the tenancy or reference to them in. However, the tenant accepts that she took one roman blind down and put it in the shed. Without any agreement from the landlord, she needed to put the blind back. The tenant has not provided any further evidence such as a photograph of the blind in the shed. It is not up to landlord to go looking for the blind.

I have decided to order compensation replacement of two roman blinds. According to the inspection reports the curtains/blinds in the kitchen where in average condition. It is not known how old they were or how much longer they would have lasted. I have applied some depreciation and have decided that $200 plus GST is appropriate compensation. That comes to $230.00. Work not yet completed

The landlord sought $810.75 to remove a lean-to and take it to the dump. This was based on a quote and the work has not been undertaken.

The landlord also sought $1,725.00 to put the grounds back to their original state, including removal of ponds, which may be a hazard to children.

[The tenant/s] consider that their work has enhanced the property. They put a small blue shell waterlily pond in the property on or before 29 November 2021 and another smaller pond was created on or before 15 April 2022.

I have decided to order no compensation for these two items because the landlord has not demonstrated a loss. The landlords outlined other proposed remedial work once the weather improves. If need be a further application may be made. Exemplary damages tree felling

The landlord seeks exemplary damages for [The tenant/s]’ actions in felling a 130-year-old macrocarpa hedge without permission. This was a windbreak.

The photos show the hedge was the large lower trunks of macrocarpas that had been cut back over the years

[The tenant/s] considered the hedge was a hazard. They say it was touching the back of the house and started dropping big branches in heavy winds. During the tenancy they had undercut the branches to let some sunshine in. They asked for some payment for cleaning up a bit after a lot of big branches kept coming down, but the owner refused. They asked if the owners would have the trees removed, but they refused because it was not urgent or dangerous.

In a letter to the Tribunal the owners said that the damage done by cutting down the macrocarpas and other trees on the property was irreparable. The trees created a microclimate in the garden, privacy from the road and shelter belt from the wind. Ten years earlier, the owners had at great expense put power from the road to the house underground, in order to allow the hedge to grow unhindered by powerlines and constant trimming.

Ms Wind said that on 3 November 2022 on being notified that a tree had broken the spouting, she requested [Tree Services] for a quote for trimming. High winds around Christmas 2022 had damaged the hedge. The landlord’s initial concern was whether there was a health and safety issue but it was not. The quote for trimming them came through on 20 January 2023. By the time of the January inspection, [The tenant/s] had already chopped them down.

I find that [The tenant/s] have intentionally damaged the premises under section 40(2). However, intentional damage under section 40 is not an “unlawful act” under the Residential Tenancies Act and so I am unable to order exemplary damages. The landlord made no other claim in respect of the hedge. Tenants’ claims

[The tenant/s] seek $50,000 compensation for their efforts during the tenancy. They say that they worked hard on the property and should be compensated for it. They wanted payment for a number of maintenance items they had attended to during the tenancy. This included: a. nailing up boards on wooden fences, building new gates and placing waratah posts. b. Removal of old dead fruit trees and stumps in the lawn c. Metal to fill up potholes in drive d. Breaking up slabs on concrete that were sitting in the middle of the driveway e. Undercutting branches at the back of the house f. Cutting and burning old fruit trees g. Plants shrubs and trees planted in garden h. Picking up rubbish from previous tenants i. 8 wire fence put in paddock j. Weedspray to cover masses of paspalum grass in the lawn k. Opossum pellets used to kill approximately 80 opossums in over 3 years l. Rat poison m. Cleaning out old water tank that previous tenants had left junk in, including a heavy gym machine n. Payment for vacuuming the whole house every 2 to 3 days to try to remove damp dirt/dust in the carpets. o. removal of dead branches coming down in strong winds p. final removal of trees, q. two chainsaw cutting blades and chains plus gas and oil etc

They also sought compensation for stress caused by constant bullying and demands.

They produced photos showing flower beds they had created.

The photographs also show a considerable amount of rubbish and debris including the gym machine which was left by the previous tenants. Claims for payment for [The tenant/s]’ work

The onus is on [The tenant/s] to establish their claims.

There is no doubt that [The tenant/s] worked hard at the property. The question is whether they should be compensated for their efforts. There was no agreement that this would be the case. Some of the items are not the responsibility of a landlord. This includes money spent on maintaining and creating a garden, lawn, weed control and rat poison.

Pest control is the tenant’s responsibility unless it can be shown that the persistence of a pest problem is as a result of a failure of the landlord to meet their responsibilities such as a failure to maintain. They say that in the end the Regional Council got rid of the rats. [The tenant/s] have not established that the rats were brought about because of a breach of the landlord’s responsibilities.

The parties agreed that some compensation had been paid such as $75 for loading the skip with the previous tenants’ rubbish and $880 for another item although it was disputed whether it was for the initial 2020 tree trimming or for paint and varnish. No matter what it was for, under section 45(1)(d), the landlord must compensate the tenant for any reasonable expenses incurred by the tenant in repairing the premises where— (i) the state of disrepair has arisen otherwise than as a result of a breach of the tenancy agreement by the tenant and is likely to cause injury to persons or property or is otherwise serious and urgent; and (ii) the tenant has given the landlord notice of the state of disrepair or made a reasonable attempt to do so.

[The tenant/s] have not established any claim for expenses for disrepair that was likely to cause injury or was otherwise serious and urgent and that they gave the landlord notice of the state of disrepair. This includes the decision to remove the macrocarpa hedge.

[The tenant/s]’ claims for reimbursement are dismissed. Claims for lack of maintenance

[The tenant/s] also said there was constant flooding at the property and produced photographs of that as well as photos of the carpet in the hallway showing some staining/discolouration on the underside of the carpet. They say that this was caused by the pooling of water on the property. They said that water used to run underneath the house and a builder inspected underneath the house and he was supposed to fill it in.

Under section 40(1), there is an onus on the tenant to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs. It is not clear from the tenant’s claim when or how they did this in relation to any issue on the property.

It is possible that the carpet was damp and that it was caused by water underneath the house, but [The tenant/s] have provided no independent evidence to establish that. They disposed of the carpet. They did not produce evidence from a builder or evidence that they had raised concerns about the dampness with the landlord. [The tenant/s] have not established their claims and they are dismissed. Harassment

In [The tenant/s]’ application, they seek exemplary damages on the basis: - Gone back on everything he said - Continual harassment

This has not been elaborated on apart from the tenant providing a medical certificate about the impacts of the ongoing dispute with the landlord on the tenant’s health.

Under section 38 a tenant is entitled to quiet enjoyment of the premises without interruption by the landlord. If the landlord causes interference with the reasonable peace, comfort or privacy of the tenant in the use of the premises and it amounts to harassment, then it is also an unlawful act, for which the landlord may be liable for exemplary damages.

The tenant has offered no evidence to support this claim. It seems that her sense of harassment has actually arisen since the tenancy has terminated and does not relate to the quiet enjoyment of the premises. This claim is dismissed. Filing fee

Because the landlord has been partially successful, I order reimbursement of the filing fee. Name suppression

Although [The tenant/s] has not been successful, on the basis of the personal issues outlined in their documentation I have decided under section 95A(4) that any public interest in publication of their name is outweighed by their privacy interests.

The landlords did not seek name suppression.

Reasons

Claims and awards in Tenancy Tribunal application 4616889. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Painting	$2,550.00	Painting
Carpet cleaning	$345.00	Carpet cleaning
Carpet replacement	$2,753.01	Carpet replacement
Blind replacement	$230.00	Blind replacement
Glass replacement	$205.00	Glass replacement
Filing fee	$20.44	Filing fee