What was the outcome of Tenancy Tribunal case 4620269?

The tribunal order states: Auta Fagia and Sepela Fagia must pay Alvin Graham Relph $9,333.60

How much money was awarded in case 4620269?

Cleaning: $1,000.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Lost Rent: $1,245.00 awarded to landlord; Pest Control: $100.00 awarded to landlord; Petrol Reimbursement: $200.00 awarded to landlord; Power: $97.16 awarded to landlord; Property Damage: $20.50 awarded to landlord; Property Damage: $147.62 awarded to landlord; Property Damage: $1,660.00 awarded to landlord; Property Damage: $800.00 awarded to landlord; Property Damage: $433.66 awarded to landlord; Property Damage: $650.00 awarded to landlord; Property Damage: $45.00 awarded to landlord; Property Damage: $661.25 awarded to landlord; Property Damage: $299.00 awarded to landlord; Rent Arrears: $1,245.00 awarded to landlord; Repainting: $1,200.00 awarded to landlord; Replace Curtains & Nets: $150.00 awarded to landlord; Replace Missing Hardware: $89.63 awarded to landlord; Rubbish Removal: $49.34 awarded to landlord

What type of tenancy dispute was case 4620269?

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

Where can I read the official tribunal order for case 4620269?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9672971-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4620269?

The tribunal order states: Auta Fagia and Sepela Fagia must pay Alvin Graham Relph $9,333.60

How much money was awarded in case 4620269?

Cleaning: $1,000.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Lost Rent: $1,245.00 awarded to landlord; Pest Control: $100.00 awarded to landlord; Petrol Reimbursement: $200.00 awarded to landlord; Power: $97.16 awarded to landlord; Property Damage: $20.50 awarded to landlord; Property Damage: $147.62 awarded to landlord; Property Damage: $1,660.00 awarded to landlord; Property Damage: $800.00 awarded to landlord; Property Damage: $433.66 awarded to landlord; Property Damage: $650.00 awarded to landlord; Property Damage: $45.00 awarded to landlord; Property Damage: $661.25 awarded to landlord; Property Damage: $299.00 awarded to landlord; Rent Arrears: $1,245.00 awarded to landlord; Repainting: $1,200.00 awarded to landlord; Replace Curtains & Nets: $150.00 awarded to landlord; Replace Missing Hardware: $89.63 awarded to landlord; Rubbish Removal: $49.34 awarded to landlord

What type of tenancy dispute was case 4620269?

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

Where can I read the official tribunal order for case 4620269?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9672971-Tenancy_Tribunal_Order.pdf.

Unit/Flat 6, 3 Tawai Street, Trentham, Upper Hutt 5018 Tenancy Tribunal Case 4620269 — Property damage

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Unit/Flat 6, 3 Tawai Street, Trentham, Upper Hutt 5018 Tenancy Tribunal Case 4620269 — Property damage | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4620269 — net $9,333.60 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 26/12/22	$1,245.00	Rent arrears to 26/12/22
Lock/key replacement	$20.50	Lock/key replacement
Glass repairs	$147.62	Glass repairs
Rubbish removal	$49.34	Rubbish removal
Flood damage repair	$1,660.00	Flood damage repair
Replacement kitchen flooring	$800.00	Replacement kitchen flooring
Pest control: time & cost	$100.00	Pest control: time & cost
Replacement carpets	$433.66	Replacement carpets
Cleaning	$1,000.00	Cleaning
Replacement vanity	$650.00	Replacement vanity
Replacement heated towel rail	$45.00	Replacement heated towel rail
Replace curtains & nets	$150.00	Replace curtains & nets
Replace missing hardware	$89.63	Replace missing hardware
Repainting	$1,200.00	Repainting
Hole repair	$661.25	Hole repair
Shed repair	$299.00	Shed repair
Petrol reimbursement	$200.00	Petrol reimbursement
Power	$97.16	Power
Lost rent	$1,245.00	Lost rent
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$9,333.60
Total payable by Tenant to Landlord	$9,333.60

Claims and awards for application 4620269 — net $9,333.60 NZD. Verify on MoJ.

Rent arrears to 26/12/22

Amount: $1,245.00
Awarded to: Landlord
Reason: Rent arrears to 26/12/22

Lock/key replacement

Amount: $20.50
Awarded to: Landlord
Reason: Lock/key replacement

Glass repairs

Amount: $147.62
Awarded to: Landlord
Reason: Glass repairs

Rubbish removal

Amount: $49.34
Awarded to: Landlord
Reason: Rubbish removal

Flood damage repair

Amount: $1,660.00
Awarded to: Landlord
Reason: Flood damage repair

Dismissed claims

Other Claims — All other claims dismissed

Claim types — money lines allowed on this order

Cleanliness Filing Fee Lost Rent Pest Control Property damage Rent arrears Rubbish Removal

Order

Auta Fagia and Sepela Fagia must pay Alvin Graham Relph $9,333.60 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $780 (3273861-014) to Alvin Graham Relph immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing. Mr Fagia attended late as he has been sent to the wrong area of the courthouse, but he did attend. He was also provided with over a week after the hearing to provide any further evidence he wished in response given the volume of Mr Relph’s evidence provided at the hearing. Background
This was a long tenancy which commenced in 2012 and ended in December 2022. Mr Relph says that during the tenancy there were many occasions when he asked the Fagias to clean the property and repair damages, and they regularly fell into rent arrears. He has provided copies of a number (20) of 14-day notices he issued the tenants over the years primarily regarding rent arrears and cleaning. He says he provided them with a cleaning schedule, cleaning products and even offered to show them how to empty the vacuum cleaner.
Mr Relph’s evidence is that when he was returned the property it was extensively dirty and damaged throughout. He has spent in excess of $50,000 reinstating the property to a liveable state and claims a portion of that back from the tenants now given how he says they treated the property when they lived in it.
Mr Fagia in defence says the home is old and was not safe for them. He said it leaked and things broke all the time. His evidence is that when they moved in, it was in a bad state and has just deteriorated over time. He says he asked Mr Relph to fix things which he usually did, but did not take him to the Tribunal on any matters because he respected him.
Mr Fagia believes that Mr Relph is trying to get them to pay for his renovations and says they should not have to pay for having to live in a poorly maintained property. He says they left the property as they found it.
Mr Relph has applied for rent arrears, compensation, exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. I detail each claim separately as follows.
Before I do however, it is useful if I outline the requirements for proof. In the Tenancy Tribunal applicants, the landlord here, are required to establish the case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof. It is up to the parties to establish their case and it is not for the Tribunal to extract the necessary evidence.
Considerable evidence was provided in these applications, and whilst it has not all been referred to for brevity reasons, the parties can be assured it has all been considered. I apologise for the delay in the issuing of this decision and thank the parties for their patience.

How much is owed for rent?

Mr Relph claims rent until the 26 th of December. He says Mr Fagia emailed him on 7 December telling him they had vacated the preceding day. He says they had told him verbally on a number of occasions they were looking to move out and he had replied directing that they had to give him three weeks’ notice in writing.
Mr Fagia thinks he did give him earlier notice and so does not agree to paying rent after the last day they resided there.
Having considered the oral evidence of both parties and the email records around the time, I find it more likely than not that notice was not given, the tenants just advised after they had left. There is nothing in writing from Mr Fagia providing a vacate date, and I see Mr Relph’s evidence advising of the requirement.
Pursuant to section 51 (2B) of the Residential Tenancies Act 1986 (RTA), tenants are required to give notice in writing specifying a vacate date. Mr Fagia did not do so; accordingly I find them liable for rent until 26 December which takes into account a shortened notice period and hence is reasonable. The claim is ordered as sought.

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

Cleaning

At the end of the tenancy the tenant 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. See section 40(1)(e)(ii)-(v) RTA.
The tenant's statutory obligation is to leave the premises reasonably clean and reasonably tidy. This is not an absolute standard, and it does not mean that the premises will necessarily be ready for occupation by a new tenant straight away. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord. The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined on the basis of the subjective opinion of either the landlord or the tenant. Also, a tenant generally, should not be expected to keep the premises any cleaner or tidier than they were at the start of the tenancy.
Mr Fagia says he did leave the premises clean when they vacated, and it was certainly as clean as it was when they received it.
Mr Relph has provided photos which show that the property was most certainly not reasonably clean and tidy. There is considerable mould and dirt on the majority of surfaces which in places was engrained due to lack of cleaning, debris on floors especially in corners, the oven was dirty, extractor fan covered in dirt and grease, the kitchen cabinetry was covered in dirt and mouldy, and there were drawings and paintings on the walls.
As to the state of the property at the commencement of the tenancy, neither party has photos. The only documented evidence is the tenancy agreement which both parties signed, and which states the property was clean. Mr Relph says the Fagia family took over the tenancy from some friends and they left the house very clean and tidy and as a result got all their bond returned.
The evidence is limited, however I place weight on the signed property inspection report and I find Mr Relph’s evidence credible. His submission that the Fagias did not regularly clean the property is supported by the 14-day notices and the photos taken at the end of the tenancy. Accordingly, I find it proven to the evidential standard that the property was not returned to Mr Relph in a reasonably clean and tidy state.
Mr Relph has provided a cleaning invoice from his property management company for $1,697 which equates to approximately 50 hours over two weeks at $30 per hour. Mr Relph says the hourly rate is lower than a commercial cleaner and given the level of engrained dirt from over the years, the claim is reasonable.
When it comes to landlords claiming for their own time, which is essentially what this is, the Tribunal is only prepared to award a reasonable amount, meaning an amount not dissimilar to other commercial costs seen whilst taking into account that they are not professional workers. In addition, the total amount charged needs to be in proportion with the required statutory standard.
This was a very long tenancy, therefore it is to be expected that the landlord would be undertaking some cleaning themselves given the statutory standard. I also accept the evidence that Mr Relph had concerns about the tenants not cleaning during the tenancy and this lack of action has meant that the end clean was more extensive than it should have been.
Having considered all of the above, and the photos provided, I find that an award of $1,000 compensation is justified. Rubbish
Mr Relph has also established in evidence that the Fagias overloaded their skip bin, so he had to arrange for the remaining rubbish to be disposed of. This claim has been proven in evidence and is ordered as sought. Cockroaches
It is undisputed that the property was infested with cockroaches when the tenancy ended. Mr Fagia says they regularly bombed but could not rid the property of them.
Mr Relph claims the cost of materials and time it took for them to deal with the issue and says the tenants never told him about them during the tenancy.
The law with respect to pests details a joint responsibility. Landlords need to make sure the property is free from pests, and tenants need to keep their house in a condition that doesn’t encourage pests. There is no evidence that the cockroaches were present from the commencement of the tenancy; Mr Relph says he only found them at the end. Accordingly, I find it more likely than not that they were present as a result of the way the Fagias lived. I therefore consider it reasonable that they reimburse the landlord for the time and cost of having to deal with them. The amount ordered is considered reasonable in light of the work required. Keys
The tenancy agreement establishes that four keys were provided at the commencement of the tenancy. Only one was returned. Mr Fagia says they lost the others. Accordingly, I find it appropriate that they reimburse Mr Relph the cost of having to replace the lost keys. Removed items
Mr Relph claims $527.77 1 compensation for having to replace the curtains in the house. He says they had all been removed, along with the oven racks and shower curtain (he is not claiming for the latter). He cannot recall when the curtains were installed however the nets were new approximately four years ago; during this tenancy.
Mr Fagia says he did not take the curtains, but it is possible his wife did.
Having assessed the evidence, I accept Mr Relph’s submission that they had all been removed, accordingly the Fagias are liable for compensation. 1 Just for materials
In determining the compensation payable, depreciation must be taken into account. Depreciation is linked to the concept of betterment. Everything is subject to wear and tear and will need to be replaced in time. Where an item has to be replaced as a result of tenant damage, this hastens the process. If the damaged item is replaced with a ‘better’ item, compensation is adjusted to reflect that.
The curtains and the nets had all exceeded their expected life span 2 but I accept were in reasonable condition and should have had some life left in them. They certainly should have been present. Accordingly, I find it reasonable to award 15% of the claim for time and cost to reinstate the curtains.
Mr Relph also claims $89.63 for having to replace missing window latches. Mr Fagia had no explanation for why these were missing. They have clearly been removed and Mr Relph has not been advised that there had been an issue with them. Tenants have an obligation to advise their landlords of any damage at the time it occurs, see section 40(1)(d) of the RTA. Therefore, I find the claim reasonable and order it as sought.
I make no award for the shower and sheer curtains as they had well exceeded their expected life span of a year and would have had to be replaced anyway.

Is the tenant responsible for the damage to the premises?

Mr Relph claims compensation for the following damage to the property: a. Cracked glass pane in door. b. Stained carpets. c. Damaged lino. d. Water damaged flooring and walls in the laundry and kitchen. e. Damaged hand basin. f. Damaged laundry tub. g. Damaged toilet. h. Removed heated towel rail. i. Damaged walls. j. Damaged shed. The law on damage
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 2 By current depreciation guidelines – nets 1-3 years, curtains 8 years 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. Whilst this tenancy commenced prior to 2019, the damage was discovered in 2022.
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. The landlord’s insurance excess was $1000, and the weekly rent was $415.
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. Broken glass
A lower pane in the front door has a large crack running through it. Mr Fagia says it smashed in the wind, but he did not report it to Mr Relph. Mr Relph considers it more likely that it was caused by careless use or kicking.
Given Mr Fagia did not advise Mr Fagia of the damage, I find it more likely than not that the crack occurred with careless use. Accordingly, I find him liable for the cost. Flood damage
Mr Relph makes the following claims for compensation due to a slow and hidden leak from the tenants’ washing machine: i. $100 replacement laundry tub. ii. Plumbers’ costs. iii. $1,021 for the wall and floor repairs. iv. Replacement flooring.
At some point in 2021 Mr Fagia purchased and had a friend install a new washing machine. It appears that when he did so, the rubber seals were left off the connection and it when it was switched on, it slowly leaked into the walls, floor and tub cabinetry. Mr Relph’s evidence is that Mr Fagia asked him to come and look at it when it was noticed and told him he had installed the washing machine some months prior.
Mr Relph fixed the connection however when the property was returned to him, he saw the extent of the damage which was otherwise hidden (wet walls and floor). As a result, he has had to replace sections of the walls, replace the flooring in the kitchen, laundry and bathroom and replace the laundry tub.
Mr Fagia says he didn’t know it was leaking and when he realised, told Mr Relph. He says it is not his fault the damage occurred as he had a friend install it.
The original washing machine was provided with the property; therefore the appropriate course of action would have been for Mr Fagia to tell Mr Relph when it stopped working and ask him to replace it. However, in replacing it with his own tub, he incurred responsibility for it.
As here, when damage is alleged, the rules relating to the burden of proof are slightly different to that described above. It is for the landlord to prove that any damage is not fair wear and tear and that it occurred during the tenancy. However, the onus then shifts to the tenant to prove that the damage was not intentionally done or was not caused by a careless act or omission 3 . In this case, there is evidence that is either contradictory or calls for the Tribunal to draw inferences. In that case the standard which the Tribunal adopts is the interpretation which a reasonable person would put on the evidence.
It is clear the damage occurred during the tenancy and that it is more than fair wear and tear given the extent of the flooding damage. It is also accepted that it is not intentional damage. What I need to decide therefore is whether it is careless damage.
Carelessness is not defined in the RTA, but its usual meaning is the lack of care, negligence or lack of forethought. It can also be defined as “heedless or thoughtless” and can cover a situation of inadvertent lack of care. 3 See sections 40(2)(a), 41 and 49B Residential Tenancies Act 1986 (RTA)
The standard of care is the standard of an ordinary careful person, so it is an objective test. An ordinary careful person is not expected to take precautions against every foreseeable risk, but only against those risks that are reasonably likely to happen. Furthermore, the damage must be of a kind that can fairly and reasonably be considered as arising naturally from the breach or a probable result of the breach. This means that the damage will not be compensated if considered to be too remote.
The alternative to carelessness is by pure accident. This would be a situation where all reasonable care was taken, but the damage occurred anyway; therefore, care would not have prevented it.
I find here that Mr Fagia did not apply the expected level of care when he had the machine installed. He clearly did not use a certified plumber given the basic washers were not installed. Accordingly, I find this careless damage.
As discussed above, liability for careless damage is limited pursuant to section 49B. Mr Relph’s insurance did not cover this situation, therefore Mr Fagia’s liability is limited to $1,660 which is the equivalent of four times the weekly rent. Accordingly, I award the maximum compensation available of $1660.
In addition, I note that the kitchen floor was primarily replaced because Mr Fagia’s fridge had leaked onto it staining it. Mr Fagia accepts this is what happened but did not tell Mr Relph about it at the time. The flooring was also damaged due to the amount of dirt engrained in it. I consider this careless damage and make an award of $800 compensation towards the repair cost. This takes into account the age of the vinyl which had exceeded its lifespan but was otherwise in good condition.
I note that Mr Relph has also claimed exemplary damages for the tenants’ failure to advise him of the flood damage however it has been established that they did advise him when they became aware. It is also not an unlawful act for tenants to fail to advise of damage under the RTA, although they are obliged to do so by section 40(1)(d) of the RTA, therefore exemplary damages are not available for such a breach. Flooring
Mr Relph claims the cost of $2,891.04 to replace the carpet due to excessive staining. He says he asked the Fagias to clean the carpet during the tenancy, but he is unsure if they did. He says at one point he asked them to vacuum, and they said they could not as the vacuum cleaner was not working however it was only full. He says he offered to show them how to empty it, but they did not take him up on it. After that he says they swept the carpet only.
The photos show heavily stained carpet with debris stuck into it such as chewing gum. There are many marks, some substantial. The carpet clearly had to be replaced.
After considering the evidence carefully, I find that the damage was caused due to careless treatment of the carpets. Accordingly, the tenants are liable for the repairs whilst taking into account the s49B cap and depreciation.
The carpet was 11 years old which is in excess of the expected lifespan of carpet in residential tenancies which is 10 years. However, I accept they were in otherwise good condition at the commencement of the tenancy and award 15% of the amount sought to take into account depreciation. Hand basin
Mr Relph claims $534 plus labour compensation for having to replace the hand basin which has a series of cracks through it. This was the second basin he installed at the property after the Fagias allegedly damaged the first one. It was second hand he says but in good condition.
Mr Fagia says they did not damage the basin and it has cracked because it is so old.
I do not find it established that the cracks occurred from general use. A basin does not just crack, even if it is old. I find it more likely than not that it has been damaged by rough/careless use, given the treatment of the rest of the house. Accordingly, I find it reasonable that the Fagias compensate Mr Relph for the cost in having to replace it.
In saying that, the amount claimed is for a new vanity. The one that was damaged was an older style, second hand basin. Accordingly, I award $250 compensation which is deemed reasonable for a like for like replacement plus $400 labour cost. Toilet
Mr Relph claims $150 plus labour to replace the toilet. He says this was the second one that got cracked during the tenancy.
Mr Fagia’s evidence is that the toilet was old and broken and leaked; an issue Mr Relph came and attended to a number of times.
Mr Relph did not have photographic evidence to establish his claim. Accordingly, I do not find them claim proven, and as such must dismiss it. Towel rail
Mr Relph claims compensation for having to replace the heated towel rail which he says Mr Fagia told him his son ripped off. He has provided a 14-day notice asking the Fagias to repair it earlier. Mr Fagia did not have an explanation as to why it had been ripped off.
I find this intentional damage given the force that would have been needed to pull the rail from the wall. Accordingly, I consider the Fagias liable for the replacement and reinstallation cost (one hour) which are modest. Walls
Mr Relph has claimed $5,412.01 compensation for having to clean fly dirt from ceilings, fill holes, marks and basic damage to the walls and paint all the walls in the home. He says the damage was extensive and exceeds fair wear and tear. The time component on this claim is for him and a contracted painter, both at a rate of $25 per hour. He submits that the claim is reasonable as the professional quotes they had were $8,000 and $13,000 and he has omitted $2,500 of his time (100 hours) to reflect depreciation.
Mr Fagia says the walls were in a bad condition at the start of the tenancy and he asked many times for them to be repainted. Mr Relph denies this but does not recall when they were originally painted.
The photos show writing and drawing on the walls in places, some holes that have been plastered but not painted, areas with chewing gum stuck to them, staples, bluetack on walls that has damaged the paint when removed and many areas of chipped paint and exceptionally dirty walls. They are in a bad state. There are also two holes in the walls in the lounge and two in the bedroom; one was so large it could be seen through into the next room. Mr Fagia does not know anything about the holes.
It is manifest that when a landlord rents premises to a tenant, that the tenants will live in the dwelling, and in the process cause some wear and tear. As far as walls are concerned, it would be expected, particularly with a long tenancy, there would be some minor damage such as scrapes, marks or even minor holes when hanging pictures and the like. That is an incident of people living in the premises, and that damage (wear and tear) is ‘compensated’ by way of the rent payments the landlord receives.
Current depreciation guidelines estimate the lifespan of paint work in New Zealand rental properties to be 5 to 14 years depending on the area. I am satisfied that it is more likely than not that this paint work has exceeded its expected life span.
I do not find it established in evidence that the walls were in a poor condition at the start of the tenancy, however I expect there was wear and tear showing at the time. I find that a substantial amount of the damage to the walls was fair wear and tear given the longevity of the tenancy, however some is clearly intentional damage such as the writing on the walls and the filled in holes. Other damage is careless such as big dents and marks.
Having considered all the evidence, I find it reasonable that the tenants pay $1,200 towards the repainting. This is 15% of the claim including the landlord’s omitted hours and reflects the number of years this family have lived in the property.
I also consider a separate award of compensation for filling the holes is appropriate as that was clearly intentional damage and as such there is full tenant liability. Shed
Mr Relph has provided evidence of a considerable dent and buckling in one corner of the shed and a slash in another side. The damage is relatively extensive, and he has proven it occurred during the tenancy as he installed the shed during the Fagia’s occupation.
Mr Fagia says the wind blew the door which made the dent, and he did not know about the slash.
I do not find Mr Fagia’s explanation credible given the location of the dent which is not where the door could reach. The extent of the damage indicates to me that this was intentional damage. Accordingly, the Fagias are responsible for the repair cost and accelerated depreciation cost which is considered reasonable. Other claims
Mr Relph claims $1,936 compensation for the fuel and $97.16 for the power he used in tending to the property between December and the next tenancy in May. He has provided invoices to support the claim.
Damages claimed, and awarded, must flow naturally and foreseeably from a breach of the tenancy agreement or RTA and be reasonable. I do accept the submission that Mr Relph would not have had to go to the property as much as he did if the tenants had not left it in the state they did. However, the state of the property is considerably advanced from what it was due to the work that has been done and the benefit of that to Mr Relph must be taken into account. I award $200 for petrol and $97.16 for power which is considered reasonable in the circumstances.
I accept that Mr Relph has not claimed all his costs in the work required on this property post tenancy, nor should he. I also note that Mr Relph did mitigate his losses by attending to much of the work himself. However, being a landlord is a business which brings with it ancillary time and work. I consider that this decision compensates the landlord where allowed by the RTA and all other ancillary costs claimed but not ordered, are business costs which come along with the business of running a residential tenancy. It is to be taken into account that the property has now been fully renovated and as such Mr Relph is able to rent it out at another $110 per week.
Mr Relph also claims $8,300 being the lost rent for the five months it took him to repair and re-tenant the property. I consider it foreseeable that leaving a house in this state would take some time to repair but not the time it has taken. As Mr Relph was undertaking the majority of the work himself, it certainly took longer than it may have otherwise.
It is also expected that a property will be vacant for at least a couple of weeks between tenancies for landlords to attend to required maintenance. That time is extended when the tenancy has been as long as this one.
Having taken into account all the evidence, I find it reasonable that compensation be paid to the amount of three weeks’ lost rent.
As Mr Relph has been substantially successful in his claim, I award reimbursement of the filing fee.

Did the tenants breach the agreement with the number of occupants?

Mr Relph claims that the number of people living at the premises exceeds the maximum number allowed in the tenancy agreement, in this case four. He says that the neighbours told him there were constantly multiple children residing there and he says this explains the excessive wear on the home.
Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant must ensure that the number is not exceeded. See section 40(3) RTA. Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,000.00. See section 40(3A)(e) and Schedule 1A RTA.
Mr Fagia denies that they ever exceeded four occupants. He says when they first moved in, it was him, his wife and son and sister-in-law. In 2019 his other three children came but two moved out after a number of weeks. He says they did often have nieces and nephews over to play but they did not live there. He says the two bedroomed home is too small for more than four people.
Mr Relph does not have any evidence other than the hearsay word of a neighbour. Accordingly, I do not find it established to the relevant standard that the Fagias breached this term of their tenancy agreement. Mr Relph says he was there regularly attending to maintenance and had they been doing so I find it likely he would have seen more evidence of such occupation such as beds, belongings, etc.
This claim is dismissed. Filing fee
As Mr Relph was put to the cost of filing this claim and he was substantially successful, I must reimburse the filing fee.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4620269 — net $9,333.60 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 26/12/22	$1,245.00	Rent arrears to 26/12/22
Lock/key replacement	$20.50	Lock/key replacement
Glass repairs	$147.62	Glass repairs
Rubbish removal	$49.34	Rubbish removal
Flood damage repair	$1,660.00	Flood damage repair
Replacement kitchen flooring	$800.00	Replacement kitchen flooring
Pest control: time & cost	$100.00	Pest control: time & cost
Replacement carpets	$433.66	Replacement carpets
Cleaning	$1,000.00	Cleaning
Replacement vanity	$650.00	Replacement vanity
Replacement heated towel rail	$45.00	Replacement heated towel rail
Replace curtains & nets	$150.00	Replace curtains & nets
Replace missing hardware	$89.63	Replace missing hardware
Repainting	$1,200.00	Repainting
Hole repair	$661.25	Hole repair
Shed repair	$299.00	Shed repair
Petrol reimbursement	$200.00	Petrol reimbursement
Power	$97.16	Power
Lost rent	$1,245.00	Lost rent
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$9,333.60
Total payable by Tenant to Landlord	$9,333.60

Claims and awards for application 4620269 — net $9,333.60 NZD. Verify on MoJ.

Rent arrears to 26/12/22

Amount: $1,245.00
Awarded to: Landlord
Reason: Rent arrears to 26/12/22

Lock/key replacement

Amount: $20.50
Awarded to: Landlord
Reason: Lock/key replacement

Glass repairs

Amount: $147.62
Awarded to: Landlord
Reason: Glass repairs

Rubbish removal

Amount: $49.34
Awarded to: Landlord
Reason: Rubbish removal

Flood damage repair

Amount: $1,660.00
Awarded to: Landlord
Reason: Flood damage repair

Dismissed claims

Other Claims — All other claims dismissed

Claim types — money lines allowed on this order

Cleanliness Filing Fee Lost Rent Pest Control Property damage Rent arrears Rubbish Removal

Order

Auta Fagia and Sepela Fagia must pay Alvin Graham Relph $9,333.60 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $780 (3273861-014) to Alvin Graham Relph immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing. Mr Fagia attended late as he has been sent to the wrong area of the courthouse, but he did attend. He was also provided with over a week after the hearing to provide any further evidence he wished in response given the volume of Mr Relph’s evidence provided at the hearing. Background
This was a long tenancy which commenced in 2012 and ended in December 2022. Mr Relph says that during the tenancy there were many occasions when he asked the Fagias to clean the property and repair damages, and they regularly fell into rent arrears. He has provided copies of a number (20) of 14-day notices he issued the tenants over the years primarily regarding rent arrears and cleaning. He says he provided them with a cleaning schedule, cleaning products and even offered to show them how to empty the vacuum cleaner.
Mr Relph’s evidence is that when he was returned the property it was extensively dirty and damaged throughout. He has spent in excess of $50,000 reinstating the property to a liveable state and claims a portion of that back from the tenants now given how he says they treated the property when they lived in it.
Mr Fagia in defence says the home is old and was not safe for them. He said it leaked and things broke all the time. His evidence is that when they moved in, it was in a bad state and has just deteriorated over time. He says he asked Mr Relph to fix things which he usually did, but did not take him to the Tribunal on any matters because he respected him.
Mr Fagia believes that Mr Relph is trying to get them to pay for his renovations and says they should not have to pay for having to live in a poorly maintained property. He says they left the property as they found it.
Mr Relph has applied for rent arrears, compensation, exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. I detail each claim separately as follows.
Before I do however, it is useful if I outline the requirements for proof. In the Tenancy Tribunal applicants, the landlord here, are required to establish the case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof. It is up to the parties to establish their case and it is not for the Tribunal to extract the necessary evidence.
Considerable evidence was provided in these applications, and whilst it has not all been referred to for brevity reasons, the parties can be assured it has all been considered. I apologise for the delay in the issuing of this decision and thank the parties for their patience.

How much is owed for rent?

Mr Relph claims rent until the 26 th of December. He says Mr Fagia emailed him on 7 December telling him they had vacated the preceding day. He says they had told him verbally on a number of occasions they were looking to move out and he had replied directing that they had to give him three weeks’ notice in writing.
Mr Fagia thinks he did give him earlier notice and so does not agree to paying rent after the last day they resided there.
Having considered the oral evidence of both parties and the email records around the time, I find it more likely than not that notice was not given, the tenants just advised after they had left. There is nothing in writing from Mr Fagia providing a vacate date, and I see Mr Relph’s evidence advising of the requirement.
Pursuant to section 51 (2B) of the Residential Tenancies Act 1986 (RTA), tenants are required to give notice in writing specifying a vacate date. Mr Fagia did not do so; accordingly I find them liable for rent until 26 December which takes into account a shortened notice period and hence is reasonable. The claim is ordered as sought.

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

Cleaning

At the end of the tenancy the tenant 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. See section 40(1)(e)(ii)-(v) RTA.
The tenant's statutory obligation is to leave the premises reasonably clean and reasonably tidy. This is not an absolute standard, and it does not mean that the premises will necessarily be ready for occupation by a new tenant straight away. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord. The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined on the basis of the subjective opinion of either the landlord or the tenant. Also, a tenant generally, should not be expected to keep the premises any cleaner or tidier than they were at the start of the tenancy.
Mr Fagia says he did leave the premises clean when they vacated, and it was certainly as clean as it was when they received it.
Mr Relph has provided photos which show that the property was most certainly not reasonably clean and tidy. There is considerable mould and dirt on the majority of surfaces which in places was engrained due to lack of cleaning, debris on floors especially in corners, the oven was dirty, extractor fan covered in dirt and grease, the kitchen cabinetry was covered in dirt and mouldy, and there were drawings and paintings on the walls.
As to the state of the property at the commencement of the tenancy, neither party has photos. The only documented evidence is the tenancy agreement which both parties signed, and which states the property was clean. Mr Relph says the Fagia family took over the tenancy from some friends and they left the house very clean and tidy and as a result got all their bond returned.
The evidence is limited, however I place weight on the signed property inspection report and I find Mr Relph’s evidence credible. His submission that the Fagias did not regularly clean the property is supported by the 14-day notices and the photos taken at the end of the tenancy. Accordingly, I find it proven to the evidential standard that the property was not returned to Mr Relph in a reasonably clean and tidy state.
Mr Relph has provided a cleaning invoice from his property management company for $1,697 which equates to approximately 50 hours over two weeks at $30 per hour. Mr Relph says the hourly rate is lower than a commercial cleaner and given the level of engrained dirt from over the years, the claim is reasonable.
When it comes to landlords claiming for their own time, which is essentially what this is, the Tribunal is only prepared to award a reasonable amount, meaning an amount not dissimilar to other commercial costs seen whilst taking into account that they are not professional workers. In addition, the total amount charged needs to be in proportion with the required statutory standard.
This was a very long tenancy, therefore it is to be expected that the landlord would be undertaking some cleaning themselves given the statutory standard. I also accept the evidence that Mr Relph had concerns about the tenants not cleaning during the tenancy and this lack of action has meant that the end clean was more extensive than it should have been.
Having considered all of the above, and the photos provided, I find that an award of $1,000 compensation is justified. Rubbish
Mr Relph has also established in evidence that the Fagias overloaded their skip bin, so he had to arrange for the remaining rubbish to be disposed of. This claim has been proven in evidence and is ordered as sought. Cockroaches
It is undisputed that the property was infested with cockroaches when the tenancy ended. Mr Fagia says they regularly bombed but could not rid the property of them.
Mr Relph claims the cost of materials and time it took for them to deal with the issue and says the tenants never told him about them during the tenancy.
The law with respect to pests details a joint responsibility. Landlords need to make sure the property is free from pests, and tenants need to keep their house in a condition that doesn’t encourage pests. There is no evidence that the cockroaches were present from the commencement of the tenancy; Mr Relph says he only found them at the end. Accordingly, I find it more likely than not that they were present as a result of the way the Fagias lived. I therefore consider it reasonable that they reimburse the landlord for the time and cost of having to deal with them. The amount ordered is considered reasonable in light of the work required. Keys
The tenancy agreement establishes that four keys were provided at the commencement of the tenancy. Only one was returned. Mr Fagia says they lost the others. Accordingly, I find it appropriate that they reimburse Mr Relph the cost of having to replace the lost keys. Removed items
Mr Relph claims $527.77 1 compensation for having to replace the curtains in the house. He says they had all been removed, along with the oven racks and shower curtain (he is not claiming for the latter). He cannot recall when the curtains were installed however the nets were new approximately four years ago; during this tenancy.
Mr Fagia says he did not take the curtains, but it is possible his wife did.
Having assessed the evidence, I accept Mr Relph’s submission that they had all been removed, accordingly the Fagias are liable for compensation. 1 Just for materials
In determining the compensation payable, depreciation must be taken into account. Depreciation is linked to the concept of betterment. Everything is subject to wear and tear and will need to be replaced in time. Where an item has to be replaced as a result of tenant damage, this hastens the process. If the damaged item is replaced with a ‘better’ item, compensation is adjusted to reflect that.
The curtains and the nets had all exceeded their expected life span 2 but I accept were in reasonable condition and should have had some life left in them. They certainly should have been present. Accordingly, I find it reasonable to award 15% of the claim for time and cost to reinstate the curtains.
Mr Relph also claims $89.63 for having to replace missing window latches. Mr Fagia had no explanation for why these were missing. They have clearly been removed and Mr Relph has not been advised that there had been an issue with them. Tenants have an obligation to advise their landlords of any damage at the time it occurs, see section 40(1)(d) of the RTA. Therefore, I find the claim reasonable and order it as sought.
I make no award for the shower and sheer curtains as they had well exceeded their expected life span of a year and would have had to be replaced anyway.

Is the tenant responsible for the damage to the premises?

Mr Relph claims compensation for the following damage to the property: a. Cracked glass pane in door. b. Stained carpets. c. Damaged lino. d. Water damaged flooring and walls in the laundry and kitchen. e. Damaged hand basin. f. Damaged laundry tub. g. Damaged toilet. h. Removed heated towel rail. i. Damaged walls. j. Damaged shed. The law on damage
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 2 By current depreciation guidelines – nets 1-3 years, curtains 8 years 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. Whilst this tenancy commenced prior to 2019, the damage was discovered in 2022.
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. The landlord’s insurance excess was $1000, and the weekly rent was $415.
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. Broken glass
A lower pane in the front door has a large crack running through it. Mr Fagia says it smashed in the wind, but he did not report it to Mr Relph. Mr Relph considers it more likely that it was caused by careless use or kicking.
Given Mr Fagia did not advise Mr Fagia of the damage, I find it more likely than not that the crack occurred with careless use. Accordingly, I find him liable for the cost. Flood damage
Mr Relph makes the following claims for compensation due to a slow and hidden leak from the tenants’ washing machine: i. $100 replacement laundry tub. ii. Plumbers’ costs. iii. $1,021 for the wall and floor repairs. iv. Replacement flooring.
At some point in 2021 Mr Fagia purchased and had a friend install a new washing machine. It appears that when he did so, the rubber seals were left off the connection and it when it was switched on, it slowly leaked into the walls, floor and tub cabinetry. Mr Relph’s evidence is that Mr Fagia asked him to come and look at it when it was noticed and told him he had installed the washing machine some months prior.
Mr Relph fixed the connection however when the property was returned to him, he saw the extent of the damage which was otherwise hidden (wet walls and floor). As a result, he has had to replace sections of the walls, replace the flooring in the kitchen, laundry and bathroom and replace the laundry tub.
Mr Fagia says he didn’t know it was leaking and when he realised, told Mr Relph. He says it is not his fault the damage occurred as he had a friend install it.
The original washing machine was provided with the property; therefore the appropriate course of action would have been for Mr Fagia to tell Mr Relph when it stopped working and ask him to replace it. However, in replacing it with his own tub, he incurred responsibility for it.
As here, when damage is alleged, the rules relating to the burden of proof are slightly different to that described above. It is for the landlord to prove that any damage is not fair wear and tear and that it occurred during the tenancy. However, the onus then shifts to the tenant to prove that the damage was not intentionally done or was not caused by a careless act or omission 3 . In this case, there is evidence that is either contradictory or calls for the Tribunal to draw inferences. In that case the standard which the Tribunal adopts is the interpretation which a reasonable person would put on the evidence.
It is clear the damage occurred during the tenancy and that it is more than fair wear and tear given the extent of the flooding damage. It is also accepted that it is not intentional damage. What I need to decide therefore is whether it is careless damage.
Carelessness is not defined in the RTA, but its usual meaning is the lack of care, negligence or lack of forethought. It can also be defined as “heedless or thoughtless” and can cover a situation of inadvertent lack of care. 3 See sections 40(2)(a), 41 and 49B Residential Tenancies Act 1986 (RTA)
The standard of care is the standard of an ordinary careful person, so it is an objective test. An ordinary careful person is not expected to take precautions against every foreseeable risk, but only against those risks that are reasonably likely to happen. Furthermore, the damage must be of a kind that can fairly and reasonably be considered as arising naturally from the breach or a probable result of the breach. This means that the damage will not be compensated if considered to be too remote.
The alternative to carelessness is by pure accident. This would be a situation where all reasonable care was taken, but the damage occurred anyway; therefore, care would not have prevented it.
I find here that Mr Fagia did not apply the expected level of care when he had the machine installed. He clearly did not use a certified plumber given the basic washers were not installed. Accordingly, I find this careless damage.
As discussed above, liability for careless damage is limited pursuant to section 49B. Mr Relph’s insurance did not cover this situation, therefore Mr Fagia’s liability is limited to $1,660 which is the equivalent of four times the weekly rent. Accordingly, I award the maximum compensation available of $1660.
In addition, I note that the kitchen floor was primarily replaced because Mr Fagia’s fridge had leaked onto it staining it. Mr Fagia accepts this is what happened but did not tell Mr Relph about it at the time. The flooring was also damaged due to the amount of dirt engrained in it. I consider this careless damage and make an award of $800 compensation towards the repair cost. This takes into account the age of the vinyl which had exceeded its lifespan but was otherwise in good condition.
I note that Mr Relph has also claimed exemplary damages for the tenants’ failure to advise him of the flood damage however it has been established that they did advise him when they became aware. It is also not an unlawful act for tenants to fail to advise of damage under the RTA, although they are obliged to do so by section 40(1)(d) of the RTA, therefore exemplary damages are not available for such a breach. Flooring
Mr Relph claims the cost of $2,891.04 to replace the carpet due to excessive staining. He says he asked the Fagias to clean the carpet during the tenancy, but he is unsure if they did. He says at one point he asked them to vacuum, and they said they could not as the vacuum cleaner was not working however it was only full. He says he offered to show them how to empty it, but they did not take him up on it. After that he says they swept the carpet only.
The photos show heavily stained carpet with debris stuck into it such as chewing gum. There are many marks, some substantial. The carpet clearly had to be replaced.
After considering the evidence carefully, I find that the damage was caused due to careless treatment of the carpets. Accordingly, the tenants are liable for the repairs whilst taking into account the s49B cap and depreciation.
The carpet was 11 years old which is in excess of the expected lifespan of carpet in residential tenancies which is 10 years. However, I accept they were in otherwise good condition at the commencement of the tenancy and award 15% of the amount sought to take into account depreciation. Hand basin
Mr Relph claims $534 plus labour compensation for having to replace the hand basin which has a series of cracks through it. This was the second basin he installed at the property after the Fagias allegedly damaged the first one. It was second hand he says but in good condition.
Mr Fagia says they did not damage the basin and it has cracked because it is so old.
I do not find it established that the cracks occurred from general use. A basin does not just crack, even if it is old. I find it more likely than not that it has been damaged by rough/careless use, given the treatment of the rest of the house. Accordingly, I find it reasonable that the Fagias compensate Mr Relph for the cost in having to replace it.
In saying that, the amount claimed is for a new vanity. The one that was damaged was an older style, second hand basin. Accordingly, I award $250 compensation which is deemed reasonable for a like for like replacement plus $400 labour cost. Toilet
Mr Relph claims $150 plus labour to replace the toilet. He says this was the second one that got cracked during the tenancy.
Mr Fagia’s evidence is that the toilet was old and broken and leaked; an issue Mr Relph came and attended to a number of times.
Mr Relph did not have photographic evidence to establish his claim. Accordingly, I do not find them claim proven, and as such must dismiss it. Towel rail
Mr Relph claims compensation for having to replace the heated towel rail which he says Mr Fagia told him his son ripped off. He has provided a 14-day notice asking the Fagias to repair it earlier. Mr Fagia did not have an explanation as to why it had been ripped off.
I find this intentional damage given the force that would have been needed to pull the rail from the wall. Accordingly, I consider the Fagias liable for the replacement and reinstallation cost (one hour) which are modest. Walls
Mr Relph has claimed $5,412.01 compensation for having to clean fly dirt from ceilings, fill holes, marks and basic damage to the walls and paint all the walls in the home. He says the damage was extensive and exceeds fair wear and tear. The time component on this claim is for him and a contracted painter, both at a rate of $25 per hour. He submits that the claim is reasonable as the professional quotes they had were $8,000 and $13,000 and he has omitted $2,500 of his time (100 hours) to reflect depreciation.
Mr Fagia says the walls were in a bad condition at the start of the tenancy and he asked many times for them to be repainted. Mr Relph denies this but does not recall when they were originally painted.
The photos show writing and drawing on the walls in places, some holes that have been plastered but not painted, areas with chewing gum stuck to them, staples, bluetack on walls that has damaged the paint when removed and many areas of chipped paint and exceptionally dirty walls. They are in a bad state. There are also two holes in the walls in the lounge and two in the bedroom; one was so large it could be seen through into the next room. Mr Fagia does not know anything about the holes.
It is manifest that when a landlord rents premises to a tenant, that the tenants will live in the dwelling, and in the process cause some wear and tear. As far as walls are concerned, it would be expected, particularly with a long tenancy, there would be some minor damage such as scrapes, marks or even minor holes when hanging pictures and the like. That is an incident of people living in the premises, and that damage (wear and tear) is ‘compensated’ by way of the rent payments the landlord receives.
Current depreciation guidelines estimate the lifespan of paint work in New Zealand rental properties to be 5 to 14 years depending on the area. I am satisfied that it is more likely than not that this paint work has exceeded its expected life span.
I do not find it established in evidence that the walls were in a poor condition at the start of the tenancy, however I expect there was wear and tear showing at the time. I find that a substantial amount of the damage to the walls was fair wear and tear given the longevity of the tenancy, however some is clearly intentional damage such as the writing on the walls and the filled in holes. Other damage is careless such as big dents and marks.
Having considered all the evidence, I find it reasonable that the tenants pay $1,200 towards the repainting. This is 15% of the claim including the landlord’s omitted hours and reflects the number of years this family have lived in the property.
I also consider a separate award of compensation for filling the holes is appropriate as that was clearly intentional damage and as such there is full tenant liability. Shed
Mr Relph has provided evidence of a considerable dent and buckling in one corner of the shed and a slash in another side. The damage is relatively extensive, and he has proven it occurred during the tenancy as he installed the shed during the Fagia’s occupation.
Mr Fagia says the wind blew the door which made the dent, and he did not know about the slash.
I do not find Mr Fagia’s explanation credible given the location of the dent which is not where the door could reach. The extent of the damage indicates to me that this was intentional damage. Accordingly, the Fagias are responsible for the repair cost and accelerated depreciation cost which is considered reasonable. Other claims
Mr Relph claims $1,936 compensation for the fuel and $97.16 for the power he used in tending to the property between December and the next tenancy in May. He has provided invoices to support the claim.
Damages claimed, and awarded, must flow naturally and foreseeably from a breach of the tenancy agreement or RTA and be reasonable. I do accept the submission that Mr Relph would not have had to go to the property as much as he did if the tenants had not left it in the state they did. However, the state of the property is considerably advanced from what it was due to the work that has been done and the benefit of that to Mr Relph must be taken into account. I award $200 for petrol and $97.16 for power which is considered reasonable in the circumstances.
I accept that Mr Relph has not claimed all his costs in the work required on this property post tenancy, nor should he. I also note that Mr Relph did mitigate his losses by attending to much of the work himself. However, being a landlord is a business which brings with it ancillary time and work. I consider that this decision compensates the landlord where allowed by the RTA and all other ancillary costs claimed but not ordered, are business costs which come along with the business of running a residential tenancy. It is to be taken into account that the property has now been fully renovated and as such Mr Relph is able to rent it out at another $110 per week.
Mr Relph also claims $8,300 being the lost rent for the five months it took him to repair and re-tenant the property. I consider it foreseeable that leaving a house in this state would take some time to repair but not the time it has taken. As Mr Relph was undertaking the majority of the work himself, it certainly took longer than it may have otherwise.
It is also expected that a property will be vacant for at least a couple of weeks between tenancies for landlords to attend to required maintenance. That time is extended when the tenancy has been as long as this one.
Having taken into account all the evidence, I find it reasonable that compensation be paid to the amount of three weeks’ lost rent.
As Mr Relph has been substantially successful in his claim, I award reimbursement of the filing fee.

Did the tenants breach the agreement with the number of occupants?

Mr Relph claims that the number of people living at the premises exceeds the maximum number allowed in the tenancy agreement, in this case four. He says that the neighbours told him there were constantly multiple children residing there and he says this explains the excessive wear on the home.
Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant must ensure that the number is not exceeded. See section 40(3) RTA. Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,000.00. See section 40(3A)(e) and Schedule 1A RTA.
Mr Fagia denies that they ever exceeded four occupants. He says when they first moved in, it was him, his wife and son and sister-in-law. In 2019 his other three children came but two moved out after a number of weeks. He says they did often have nieces and nephews over to play but they did not live there. He says the two bedroomed home is too small for more than four people.
Mr Relph does not have any evidence other than the hearsay word of a neighbour. Accordingly, I do not find it established to the relevant standard that the Fagias breached this term of their tenancy agreement. Mr Relph says he was there regularly attending to maintenance and had they been doing so I find it likely he would have seen more evidence of such occupation such as beds, belongings, etc.
This claim is dismissed. Filing fee
As Mr Relph was put to the cost of filing this claim and he was substantially successful, I must reimburse the filing fee.

Tenancy Tribunal case 4620269 — Property damage at Unit/Flat 6, 3 Tawai Street, Trentham, Upper Hutt 5018

At a glance

Tenancy Tribunal case 4620269 — Property damage at Unit/Flat 6, 3 Tawai Street, Trentham, Upper Hutt 5018

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

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

Is the tenant responsible for the damage to the premises?

Did the tenants breach the agreement with the number of occupants?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

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

Is the tenant responsible for the damage to the premises?

Did the tenants breach the agreement with the number of occupants?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions