Published tribunal order
Tenancy Tribunal case 4617630 — State of repair
Decided 8 Apr 2024 · Published 8 Apr 2024 · Application 4617630
- State of repair
- Property damage
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
- The Bond Centre is to pay the bond of $1,760.00 ([Bond number suppressed]) to [The tenant/s] immediately
- Eves Ltd t/as Eves Whangarei (as agent for Natalyan & Evgeny Smironova) is to pay [The tenant/s] $1,240.67 calculated as shown in table below.
Reasons
Background
- The tenancy ended on 24 April 2023.
- The landlord’s first application (4617630) sought vacated repairs, rubbish removal, and replacement of locks.
- The parties attended a telephone mediation on 4 September 2023 and reached an agreement in respect of water rates arrears and window repairs. The balance of the landlord’s claim was referred for a Tribunal hearing.
- [The tenant/s] filed a cross-application (4694349) on 25 September 2023.
- The first hearing took place on 8 December 2023. Both parties attended the hearing. Ms Ryburn represented the landlord.
- At that hearing I heard from both parties about the landlord’s claim. Ms Ryburn was not aware of the tenant’s cross-application. The hearing was adjourned.
- The landlord filed a second application on 12 January 2024 (4780125).
- The second hearing took place on 1 March 2024. Both parties attended the hearing. Landlord application 4617630
- The claim seeks the following costs: a. Reinstatement of sub-floor insulation $230.00. b. Replace French door lock $215.00. c. Repairs to garden gate $130.00. d. Repairs to main gate $240.00. e. Towel rail replacement $50.00. f. Rubbish removal $100.00.
- [The tenant/s] accepted the claims for rubbish removal and replacement of the towel rail. Sub-floor insulation
- The underfloor insulation has been partially torn down. Ms Ryburn submitted that it appears to be dog damage.
- [The tenant/s] occasionally looked after her sister’s dog.
- I accept that [The tenant/s] had no idea about the damage – she had no reason to look underneath the house.
- However, the damage is beyond fair wear and tear, and I’m satisfied that it was most likely caused by [The tenant/s]’s sister’s dog. The amount claimed for reinstating the insulation is proven, and is fair and reasonable. French door lock
- [The tenant/s] was provided with three keys at the start of the tenancy, one of which was for the French door.
- The French door lock was changed during [The tenant/s]’s tenancy (a maintenance repair) and [The tenant/s] was provided with a new key. [The tenant/s] submitted that she gave Ms Engelbrecht the old key at that time (around 2021).
- [The tenant/s] returned three keys at the end of the tenancy.
- Ms Ryburn submitted that none of the returned keys fitted the French door. The claim seeks the cost of replacing the lock.
- This part of the landlord’s claim is puzzling.
- I accept that the landlord would not have changed the French door lock if the keys that [The tenant/s] returned worked.
- However, I must also give weight to [The tenant/s]’s evidence. [The tenant/s] submitted that she went in and out of this door using the new key from 2021 until the end of the tenancy. [The tenant/s] submitted that this was the main door that they used during the tenancy (the front door goes into the laundry). She returned the old key for this door when the work was done, and there was no reason for her to retain it.
- The landlord has the burden of proof.
- In light of this conflicting information, my finding is that it is not proven that [The tenant/s] failed to meet her duty to return all of the keys that were provided to her by the landlord. Garden gate
- Ms Ryburn provided photographs showing the damage to the side gate.
- [The tenant/s] did not know how or when the gate came to be damaged, but she noted the neighbour’s fence was badly damaged in a storm during the tenancy, and this gate may have been damaged in that same event.
- It is possible that the gate may have been damaged by slamming during a storm, but such damage would only be possible if the gate was not properly secured.
- I am satisfied that the damage occurred during the tenancy and the damage is beyond fair wear and tear. There is not sufficient evidence to establish that it was caused by circumstances outside of [The tenant/s]’s control.
- This part of the claim is proven. The amount claimed for repair is fair and reasonable. Main gate
- Ms Engelbrecht was the Eves’ property manager who looked after this tenancy. Ms Engelbrecht left Eves some time after the end of this tenancy. Ms Ryburn represented Eves at the hearings.
- Ms Ryburn was uncertain about the claim for repairs to the main gate. She understood that it related to the removal of a piece of corrugated iron that [The tenant/s] had affixed to the gate.
- However, [The tenant/s] said that she removed that iron before she left the property.
- It is not proven that Ms Ryburn’s photograph showing the iron in place was taken at the final inspection.
- The claim for ‘repairs’ to the main gate is not proven. Summary of 4617630
- [The tenant/s] is for the cost or reinstating the insulation, repairs to the garden gate, replacement of the towel rail, and rubbish removal. Landlord application 4780125
- This application seeks the cost of re-establishing a hedge at the front (roadside) boundary of the property.
- Ms Ryburn provided a photograph taken during the tenancy which shows an established hedge at the front of the property.
- There are no final inspection photographs showing this part of the property.
- [The tenant/s] stated that the hedge was in place when she left the tenancy and she was puzzled by the claim.
- Ms Ryburn received a photograph from the owners showing the hedge missing, but I have no evidence about the date that the owners’ photograph was taken.
- The landlord has the burden of proof.
- The evidence provided to me does not establish (to the standard of “more likely than not”) that the hedge was removed during the period of the tenancy.
- Therefore, this application is dismissed. Tenant application
- [The tenant/s] raised maintenance issues (stove, windows, verandah steps) and challenged the validity of a rent increase in December 2022.
- Landlords must provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises. Stove
- [The tenant/s] submitted that: a. In or around September 2022 there was an incident where the stovetop sparked / arced when she was cleaning it. After that one element could not be turned off. She informed the landlord, who sent an electrician. The electrician disabled the element. b. In December 2022 the sparking / arcing happened again. After that, the stove stopped working entirely. She notified Ms Engelbrecht about this, and she sent follow up messages just before Christmas and again in January 2023. c. Eventually she saw Ms Engelbrecht at the property (Ms Engelbrecht had brought a valuer around) and she asked again about the stove. Ms Engelbrecht told her that because her tenancy was ending the stove would not be replaced. d. The reason for the termination was that the property was being sold. After [The tenant/s] moved out, the owner purchased a new stove for the sale of the property.
- Ms Ryburn provided an invoice showing that an electrician worked on the stove in December 2022. The invoice is dated 13 December. This possibly relates to the initial arcing / element issue, although the timing of it does not align with a [The tenant/s]’s recollection of when the first sparking / arcing incident occurred.
- However, [The tenant/s]’s messages show, and Ms Ryburn did not dispute, that the property was without a functioning oven from December 2022 (about a week before Christmas) until April 2023.
- The timing of the failure was unfortunate and I accept that the landlord may not have been able to attend to repair / replacement until mid-late January.
- However, the fact that there is no evidence of Ms Engelbrecht taking any steps to investigate the problem, together with [The tenant/s]’s evidence about what Ms Engelbrecht told her when they met at the property, indicates that there was a conscious decision to not attend to the repair / replacement of the stove.
- That amounts to an intentional breach of the landlord’s duty to maintain the premises, and it warrants an award of exemplary damages in addition to compensation for the loss of amenity that [The tenant/s] suffered from not having a working stove.
- There were four children at the property. Being without a stove for four months caused [The tenant/s] significant inconvenience. I will award compensation of $750.00.
- Failure to maintain the premises is an unlawful act 1 . Exemplary damages of up to $7,200.00 can be awarded for this unlawful act.
- The Tribunal may award exemplary damages if an unlawful act was committed intentionally. In considering an award of exemplary damages the Tribunal must have regard to 2 : 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.
- For the reasons given above, I am satisfied that the failure to attend to the repair or replacement of the stove was an intentional act.
- [The tenant/s] concluded that the landlord simply decided to not bother replacing the stove until her tenancy ended, so the property could be marketed for sale with a brand new stove. There is a reasonable basis for [The tenant/s]’s suspicion, however I have not heard from Ms Engelbrecht or the owners, and I acknowledge that there may have been other factors in the landlord’s decision.
- The effect of the failure to maintain was significant inconvenience and stress for [The tenant/s]. There is a legitimate public interest in holding landlords to their duty to maintain the premises, especially in respect of important amenities.
- Having regard to these factors, and factoring in the compensation award made above, I will award exemplary damages of $1,200.00. Windows
- The property has older style wooden window frames with metal fittings.
- [The tenant/s] submitted that she experienced continuing problems with the windows during her tenancy. The windows were draughty. Some of the windows did not have ‘anchors’ for the window stays so they could not be secured open. 1 Section 45(1A) Residential Tenancies Act 1986 (“RTA”) 2 Section 109 RTA
- [The tenant/s] acknowledged that her young children also sometimes removed or loosened the butterfly nuts that secure the metal stays. [The tenant/s] accepted and paid for the cost of replacing the stays where this happened.
- [The tenant/s] recalled a few occasions during her tenancy when there was a particular problem with a window, and she agreed that those specific problems were dealt with reasonably promptly once she made Eves aware of them.
- Some windows were broken in February 2022. [The tenant/s] submitted that the damage happened during Cyclone Dovi. She recalled the windows slamming and the panes breaking during the extreme winds.
- Eves (Ms Engelbrecht) informed [The tenant/s] that she would be held liable for the re-glazing and window repair costs because the windows must not have been secured properly. [The tenant/s] disputed this, but Eves simply charged the cost to [The tenant/s] ($517.50 on 31 March 2022) and began allocating weekly payments that [The tenant/s] was making towards water to the window repair / reglazing cost.
- As noted above, the landlord’s obligation to maintain the premises takes into account the “age and character of the premises”.
- This property has wooden window frames and metal fittings. [The tenant/s] must accept the positives and the negatives that go with that.
- However, the landlord must also accept that retaining this type of joinery is going to involve more on-going maintenance than aluminium joinery.
- In other words, there is a compromise, which in my view should also have been applied to the cost of re-glazing and repairs in March 2022. The windows would not have slammed if they were secured, but the fact that they were not secured does not necessarily mean that [The tenant/s] was careless. The damage occurred during a cyclone.
- My finding is that [The tenant/s] is entitled to reimbursement of half of this cost.
- In other respects, although I acknowledge [The tenant/s]’s frustration with the windows, I am satisfied that Eves attended to necessary repairs promptly. Verandah steps
- The wooden verandah steps came loose from the deck and were unstable and unsafe to use.
- The issue arose in the latter stages of the tenancy.
- [The tenant/s] submitted that she raised the issue verbally with Ms Engelbrecht, but no action was taken.
- Ms Ryburn submitted that there is no record of any complaint about the steps.
- Without the opportunity to hear from Ms Engelbrecht, and in the absence of any other evidence around notification to the landlord, my finding is that it is not appropriate to make a finding that the landlord failed to attend reasonably promptly to the repair of the steps. Rent increase
- [The tenant/s] challenged a rent increase from $480.00 to $550.00 that the landlord applied with effect from 3 December 2022.
- [The tenant/s] submitted that she received no notice of this rent increase.
- She did not become aware of it until Ms Engelbrecht handed her a copy of the notice at an inspection in late November, about a week before the increase took effect.
- Ms Ryburn provided a copy of the notice to the Tribunal – it is dated 24 September 2022 and it is addressed to [The tenant/s] at the tenancy address.
- A notice can be effectively served on the tenant by posting it to the tenancy address 3 . If a landlord serves a notice by post, the landlord does not have to prove that the tenant received or read the notice – it is sufficient for them to show that the letter was correctly addressed 4 .
- If the notice of rent increase was not created on 24 September, but was created at a much later date and then handed to [The tenant/s] at the inspection in late November, then the only possible explanation is that Ms Engelbrecht intentionally and deceptively back-dated the letter and falsely claimed that it had been posted.
- I am not prepared to make such a finding on the evidence that is currently available to me. I accept that [The tenant/s] did not see the posted notice, but there are several possible explanations for this.
- I accept the notice at face value, and therefore I find that Eves gave a valid and effective notice of the rent increase.
- [The tenant/s] refused to accept the rent increase but, oddly enough, did not fall into rent arrears in the last four months of her tenancy. This is because she was in the habit of paying an amount on top of her $480 per week rent, towards water and other costs. After December 2022 the landlord simply applied all of those payments to the new rent amount.
- This has implications in terms of the calculation of water rates arrears, and it is not obvious to me that the complex calculation has been properly worked through. However, the water rates part of the landlord’s claim was accepted in 3 Section 136(2)(a)(i) RTA 4 Section 136(7) RTA mediation and is recorded in a mediated order, and it is not appropriate for me to re-visit that outcome in this decision. Outcome, filing fee, bond, name suppression
- Both parties were partially successful in their applications, and both are entitled to the filing fee.
- The amount owed to [The tenant/s] exceeds the amount owed to the landlord, per the table above.
- The bond will be paid to [The tenant/s].
- [The tenant/s] sought name suppression. Name suppression is granted on the grounds that [The tenant/s] substantially succeeded in the proceedings.