What was the outcome of Tenancy Tribunal case 4622809?

The tribunal order states: Colin Ma must pay Storm Roche and Akimi Kojima $220.00 immediately,

How much money was awarded in case 4622809?

Compensation: $100.00 awarded to landlord; Property Damage: $333.00 awarded to tenant; Property Damage: $167.00 awarded to tenant; Property Damage: $180.00 awarded to landlord

What type of tenancy dispute was case 4622809?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4622809?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9892665-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4622809?

The tribunal order states: Colin Ma must pay Storm Roche and Akimi Kojima $220.00 immediately,

How much money was awarded in case 4622809?

Compensation: $100.00 awarded to landlord; Property Damage: $333.00 awarded to tenant; Property Damage: $167.00 awarded to tenant; Property Damage: $180.00 awarded to landlord

What type of tenancy dispute was case 4622809?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4622809?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9892665-Tribunal_Order.pdf.

4 Tobago Place, Sunnynook, Auckland 0620 Tenancy Tribunal Case 4622809 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4622809 — net $220.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation for wardrobe door	$100.00		Compensation for wardrobe door
Window repair costs	$180.00		Window repair costs
Exemplary damages: Tenancy agreement		$167.00	Tenancy agreement
Exemplary damages: Bond lodgement		$333.00	Bond lodgement
Total award	$280.00	$500.00
Net award		$220.00
Total payable by Landlord to Tenant		$220.00

Claims and awards in Tenancy Tribunal application 4622809 — net $220.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation for wardrobe door	$100.00		Compensation for wardrobe door
Window repair costs	$180.00		Window repair costs
Exemplary damages: Tenancy agreement		$167.00	Tenancy agreement
Exemplary damages: Bond lodgement		$333.00	Bond lodgement
Total award	$280.00	$500.00
Net award		$220.00
Total payable by Landlord to Tenant		$220.00

Order

Colin Ma must pay Storm Roche and Akimi Kojima $220.00 immediately, calculated as shown in table below:
If the tenants have not removed all goods by 9:00am on 7 February 2024: a. The landlord must take any of the tenant’s personal documents that have been left at the premises to the nearest Police station and obtain a receipt for them; and b. The landlord shall dispose of the other goods left at the premises by the tenant by:
All other claims are dismissed.

Reasons

The Tribunal must consider an applications filed by both the tenants and landlord.
Both parties appeared at the hearing today. I record that the Tribunal was assisted by a Chinese speaking interpreter for the landlord, and a Japanese speaking interpreter for one of the tenants. The landlord requested the hearing be in English (but to use the interpreter if needed), the tenant requested the whole of the hearing to be interpreted into Japanese, which it was.

BACKGROUND

The tenancy commenced on 1 November 2019. There was no written tenancy agreement, but a receipt for the bond was provided. As the Tribunal has determined from an earlier hearing, the premises were a boarding house premises.
I understand that around May 2023 the tenants went to Japan for a month, and returned on or around 18 June 2023.
After returning home, the tenant developed concerns about the premises in relation to a rash he developed. The Tenant states: 19th June 2023 -After an uncomfortable itchy night sleep and Jet lagged, I awoke early with a mission to solve why I was itching, I redecorated the Bathroom specifically toilet with some brick sticker wallpaper (purchased overseas) as there was just a hole in the wall where the old toilet was. -That morning 19th June 23 we picked up my car from my sisters in Parakai and returned home to 4 Tobago where I started itching again straight away and thought something is up with the room. As I had been suffering from an intense rash after working out in the gym. I first broke out with it to the extreme scale a week or so before we left for overseas. But I thought it was weird heat rash as it only broke out majorly with high cardio workouts. However, after not being in the room for a month I thought something amiss when I started itching straight away. After that I decided to clean the room in the fashion of a Spring clean, starting behind the couch’s late afternoon. This is when we noticed the Major problem of Black Mold and a Carpet beetle infestation. We realized the Gravity of the situation and Contacted Colin Ma (Flatmate/Landlord) via Whats app at 6.45ishpm. He rung and told us to vacuum it and wipe the walls in which I replied to its beyond that and to Inspect for himself. Colin arrived between 7 to 7.30pmish. We tried to sort the matter with Colin, in which he said he would re carpet it and wipe the walls. This is where it started to get concerning, as we know how Colin has previously repaired things before and his attitude toward our situation was vile and disgusting suggesting we come back in 2 days and all would be well. We had nowhere to sleep on such short notice, let alone I may be contagious I did not want to call my friends and gate crash there place at nearly 9pm and havnt even seen them for a month, with a possible skin infection. After intense verbal discussions it resulted in us having a Motel for the Night paid by Colin Ma reluctantly. Receipt and Screenshots provided. (ARISTOTLES MOTEL). The unessacary harassment of Colin Ma started this Night, 19th June 2023. He continued to try argue on the phone when supposedly just rang to check if we had checked in. Last check in was 9pm, we checked in at 8.52pm. Colin rang at 8.59pm just as we got our stuff in the door. We told him we checked in and we would sort it tomorrow we just want to go to bed. He began harassing me about what was gana happen , The call in the end lasted 9mins 50seconds with me starting to loose patience with this man's discourse about the situation.
I further understand that the tenants sought $10,000.00 of compensation from the landlord in relation to the state of the premises, but the landlord declined to pay that sum, and from then the relationship between the parties seriously deteriorated, and the Police became involved.
The landlord served a termination notice on 20 June 2023 requiring the premises to be returned on 4 July 2023, on the basis of the tenant had threatened the landlord.
The landlord served a second termination notice on 21 June 2023. This records that the tenancy was terminated, and possession was to return to the landlord on 23 June 2023. The written notice specifically refers to the tenant threatening the landlord.
A Police complaint was made, which has recorded the complaint in these terms: Colin had informed Storm he had until July 4 th to move out of the home, and has now issued him with a formal eviction notice. Colin wanted Police to remove storm from the property because he was became [sic] verbally aggressive and rolling up his sleeves like he was going to punch him.
The tenant does not dispute that there was this disagreement, but views what happened differently, as I have recorded below.
When the tenant failed to vacate the premises, on 24 June 2023 the landlord served a trespass notice on the tenants, and the Police were present at that time also.
The tenants left the premises on 24 June 2023, and returned possession to the landlord that day. It is the case that the tenants have left a range of goods at the premises.
Both parties filed applications with the Tribunal.
The matter first came to the Tribunal on 11 August 2023. In an order from that date, Adjudicator Greene confirmed that the premises were a boarding house tenancy, so the RTA provision in relation to boarding houses would apply. Mr Greene also ordered by consent that the rent paid to the landlord following 24 June 2023 was to be refunded to the tenants. Otherwise the matter was referred to mediation, to see if the dispute could be settled with a mediators assistance.
The mediation was not successful in resolving the dispute, so the matter has now returned to the Tribunal to conclude the proceeding.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

TENANTS CLAIMS

TENANCY AGREEMENTS

The tenant submits that the tenancy agreement was only made verbally and not written down. Therefore the agreement was not signed or provided to the tenant. The tenant further states that the landlord has provided misleading information because the landlord said he was a flatmate, and communications referred to them as being ‘flatmates’. Mr Ma advised that he had thought it was a flatting situation, but at the previous hearing the Tribunal confirmed that this was a boarding situation.
In response the landlord states that the room was advertised in 2019, as a room for rent, the bond was paid and the tenants moved in. The landlord states that there was no written tenancy agreement, but there was a written bond receipt. Mr Ma advised that he did not provide a written tenancy agreement because it was a flatting situation where only a room was rented. The tenant states that there were ‘house rules’ posted around the premises which would not be consistent with the arrangement being a ‘flatting’ situation. Analysis
There is no dispute between the parties that the landlord failed to provide a written tenancy agreement.
When I consider this claim, I must consider the law that applied when the tenancy commenced, and both parties record that to be 1 November 2019. As of that date, the RTA required that tenancy agreements be in writing, but the law at that time did not make it a specific unlawful act if the tenancy agreement was not written or signed, that only became unlawful from 11 February 2021, and was not retrospective.
But the RTA as of 1 November 2019 did record that it was an unlawful act (for which exemplary damages can be ordered), if the landlord fails to provide the following: a. An insulation statement (s13A(1A). b. An HHS compliance statement (s13A(1CA)); and c. An insurance statement (s13A(2)).
The landlord has not provided these statements, so has committed an unlawful act.
The tenant also says that the landlord committed an unlawful act because he provided a false or misleading statement in the tenancy agreement, because he referred to the parties as flatmates. The problem for the tenant is that while it was unlawful for the landlord to provide false or misleading information, that of course relates to the written tenancy agreement, and here there is no written tenancy agreement, so technically there is no breach.
There has nevertheless been a breach of the landlords obligations around the insulation, HHS and insurance statements, those being unlawful acts. The question then is whether exemplary damages can be ordered.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which in this case is a maximum of $500.00.
I have determined that exemplary damages should be ordered. I consider the landlords decisions around the tenancy agreement were intentional. The landlord impressed me as an experienced landlord, who should be well aware of his obligations under the RTA, to provide tenancy agreements with the required information. To that extent I consider the breach more likely to be intentional. The effect of the breach is that the tenant was not informed of the information that the law required, in relation to the tenancy. There is a strong interest for tenants to be provided with the necessary information, which also translates into a public interest generally. I consider it would be just to make an order of exemplary damages for this breach.
The maximum level of exemplary damages at the time of the branch, was $500.00. That is of course the maximum, and it is unusual for the Tribunal to order the maximum level of exemplary damages except in the most egregious of cases. In this case I have determined an order at one third of the maximum would be fair and reasonable. I can see no factors arguing for a higher or lesser amount. I therefore order the landlord to pay exemplary damages of $167.00 for breaching his obligations in relation to the tenancy agreement.

BOND

The tenant states that a bond of $480.00 was paid at the start of the tenancy, and reference was made to a receipt from Mr Ma dated 25 October 2019. The weekly rental was $240.00. The tenants state that the landlord subsequently advised the tenants to skip one week of rent to bring the bond to one week of rent in August 2020.
The landlord accepts that $480.00 of bond was received, but one week of rent was refunded by way of a rent holiday for the rent due on or about 20 August 2020. The landlord advised that the reason the refund was made was because if he kept two weeks rent that would have needed to be lodged with the Bond Centre. Analysis
In a boarding house tenancy, when the bond paid is one week or less of rental, the landlord does not need to lodge that bond with the Bond Centre, they can simply hold it themselves. But when the bond is more than one week, it must be lodged with the Bond Centre (see section 66D).
In this case the tenant paid two weeks of bond, there is no dispute around that. However, it appears that the landlord realised that two weeks of bond could not be held, in 2020, and at that time the landlord reimbursed the tenants the additional week of bond, treating that as a rent payment.
Again however, I consider that when the bond was paid the landlord should have realised that he had obligations in relation to management of the bond, and should have known that two weeks of rental as bond needed to be lodged with the Bond Centre, and he therefore failed to do so which is a breach of section 66D.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
Again I have set out the criteria I must consider in relation to exemplary damages claims above. I consider that the landlords decisions around failing to lodge the bond, would likely have been intentional at the time. The effect for the tenant is that his bond was not kept in the safe custody of the Bond Centre. There is a very strong interest for tenants and landlords generally that the bond system is robust, which requires that bonds be lodged with the Bond Centre as required. I consider it would be just to make an order of exemplary damages here.
At the time of the breach, the maximum level of exemplary damages that could be ordered was $1,000.00. Again I have determined that one third of the maximum level of exemplary damages would be reasonable, and order the landlord to pay the tenant $333.00 exemplary damages.

HARASSMENT

The tenant states that harassment occurred when the eviction notice was served. The tenant states that they were in the process of moving out, and the landlord said that he was the landlord so he could do what he wanted, and put the notice on some tenant belongings. That resulted in an argument with the landlord at the time. The tenant states that during a argument he advised that the landlord should throw the first punch so he could claim self-defence, and then the landlord left the premises and called the police.
The tenant states that the second episode of harassment was when Ms Kojima was served a trespass notice at 11:50pm by the landlord when the police were in attendance. The tenant considers the trespass notice was invalid.
The third episode is being defamed in this proceeding in relation to earlier matters for the tenant.
At the hearing the tenant showed the Tribunal a video of the argument at the time the notice was served. The video showed Mr Ma and Mr Roche having an argument at what appears the door to the tenancy. The video does not show Mr Roche telling Mr Ma that he cannot come into the premises, but does support a notice be placed on a suitcase just inside the door. The argument included a disagreement over the level of compensation that would be paid / accepted. The video shows a second person attending with the landlord.
In response the landlord states that the argument started because the tenant wanted the landlord to pay $10,000.00 compensation, which the landlord considered was intended to ‘rip him off’.
The landlord maintains that what he said about the tenant was correct. Analysis
Section 38 of the RTA confirms that the tenant “shall be entitled to have quite enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
Taking those definitions into account, I have determined that the evidence falls short of establishing that the landlord harassed the tenant for these reasons:
The first episode of harassment was claims to have arisen when the landlord delivered a termination notice. I have considered the video provided, and in my assessment that video showed a mutual disagreement, or more accurately and argument between Mr Roche and Mr Ma. I cannot say that either the tenant or landlord was fuelling the argument, it does in my assessment reflect an argument that both parties at least equally contributed to. I do not consider that it could be said the landlord harassed the tenant during that argument. But if I were wrong with that, I would not have awarded exemplary damages because I would have considered that it would not be just to make such an award, where the argument was mutual.
The second episode of harassment was claimed to be when a trespass notice was delivered.
The tenants position is that the termination of the tenancy was invalid. On the basis of the information I have available, I consider the termination was valid and within the landlord’s rights under the RTA. Section 66U relates to termination of boarding house tenancies, and allows a boarding house landlord to terminate the tenancy with immediate effect if the tenant has threatened to endanger people, or cause serious disruption to other tenants. Based on the evidence given by both parties at the hearing, including the documentary evidence on the file, that evidence favours the conclusion that the tenant had made threats toward the landlord, which would have been sufficient to allow an immediate termination of the tenancy. The fact the landlord gave two days notice does not negate the landlords right to terminate, it would of course be wholly in the tenants favour to have additional time to vacate the premises.
I do not consider that delivering the trespass notice to be harassment, because the landlord has given a valid termination notice, and the landlord was therefore entitled to trespass the tenant from the premises. I am minded that the police were in attendance, no doubt monitoring the situation, and if the landlord’s behaviour was moving into the untoward category, presumably the police would have dealt with that. But there was no evidence that occurred.
The third ground of claimed harassment relates to alleged defamation on the part of the landlord, in relation to claims made within the course of these proceedings. Parties in proceedings such as those before the Tribunal have a privilege, which is a defence to claims of defamation in relation to the content of claims or evidence given.
For those reasons I find there is no evidence of harassment of the tenant, and therefore no breach of the tenants right to quiet enjoyment, meaning this claim must be dismissed.

HEALTHY HOMES STANDARDS

The tenant submits that the landlord has breached the Healthy Homes Standards. The tenant states that there was a high moisture meter reading and mould indicating the premises were damp. The tenant also says that there was a crack that had been painted over suggesting a previous leak. The tenant says that there was insufficient maintenance including to windows.
In response the landlord refers to an independent Healthy Homes Assessment Report. The landlord states that tenant had been to Japan for about four weeks and over that time the room had been shut up, and over that time the premises would have got damp. The landlord considers that the tenant is unreasonably seeking $10,000.00 compensation. The landlord confirmed that the HHS assessment was undertaken within a few days of the tenant moving out, and that no work was undertaken to the dwelling in the intervening few days after the tenants moved out. Analysis
The tenants have claimed that the landlord has breached their obligations as it relates to the Healthy Homes Standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $4,000.00 when the tenancy started, but currently $7,200.00.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The Insulation standard requires that the premises have qualifying insulation in the ceiling cavity, and under the floor if the floor is a suspended floor. To be considered ‘qualifying insulation’ the insulation must meet a minimum R value. The insulation must also be in a reasonable condition.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
In this case the tenants claim is that the landlord has breached the HHS in relation to moisture in the premises. The tenant relies on moisture meter readings at the premises, and has provided photographs of those. It is difficult to know what weight to place on those photographs, because I have not received any report or evidence from a person qualified to interpret that type of reading, and to explain what it means as far as these premises are concerned.
The landlord has provided what I accept is an independent Health Homes Standards inspection report. This report was provided by assessor Mr Fang, from an assessment on 28 June 2023 (3 days following possession returning to the landlord). The assessor determined the whole of the premises complied with the HHS, and notes that he could see no sign of mould.
Overall the best evidence before the Tribunal is that from Mr Fang. I have no reason to believe that the assessor is not qualified to independently assess dwellings, and the only conclusion that can be reached from his report, is that the dwelling met all of the HHS criteria. Certainly I have not been provided with any contrary independent report.
The tenant has also raised concerns in relation to repairs to the window, and a claimed a carpet beetle infestation. These would not fall within the landlords HHS obligations. However in relation to the window, I accept the landlord would have obligations to reasonably maintain the premises, and I accept that the landlord had addressed the split window, and also believed that it had been properly repaired. If the tenant viewed that differently, the tenant could have provided a 14 day notice to the landlord to remedy a breach, and the landlord failed to do so, the tenants could have applied to the Tenancy Tribunal for any necessary orders, which could include work orders. Similarly, in relation to the claimed carpet beetle infestation, this is also a matter the tenants could have raised with the landlord by way of a 14 day notice. However, the landlord says this has not previously been raised, and an argument could be made that if toward the end of the tenancy there was an issue with carpet beetle, that it would fall within the tenants obligation to keep the premises reasonably clean and tidy. However I am not persuaded the tenant has proven a breach of the landlords maintenance obligations here, certainly sufficient to order the payment of exemplary damages.

COMPENSATION

The tenants seek compensation / orders for: a. Bond of $480.00 or $240.00 b. Emergency accommodation of $1,192.97 c. Storage of $367.01 d. Bed of $350.00 e. Medical costs of $110.00.
The landlord agrees that he has a bond of $240.00. However the landlord states that he had paid $199.00 of accommodation for a motel already. Otherwise the landlord notes that the tenants are able to collect their goods. Analysis
There is no dispute from the landlord that he holds bond of $240.00, and I will address that in the course of this order.
However there is no basis to order the landlord to pay emergency accommodation, or storage costs for the tenant. The tenancy was validly ended by way of notice from the landlord. That notice required the tenant to vacate the premises with two days’ notice, and at the same time, the tenants were required to return the premises reasonably clean and tidy, and remove all of the goods.
In relation to the tenants bed, this should have been removed at the end of the two day notice period. Furthermore the tenant has not convinced me that there were defects with the premises which caused the property to be damp, and a generator of mould. Again I note the HSS inspection report records there was no mould evident.
Finally the tenant has claim for medical costs, with reference to treatment records around his rash. This claim must be dismissed, because there is insufficient medical evidence linking the tenant’s rash, with the Tenancy. I note that the treatment records are from a nurse practitioner. The nurse practitioner states: ...presents rash All over body rash for [one month] from carpet beetle infestation at home...
This clinical record falls very well short of the standard of medico legal evidence that would be necessary to establish this claim, for these reasons: a. I am not persuaded that the nurse practitioner would be suitably qualified to provide an expert opinion as to the cause of a rash. b. Having a rash of a self is not a particularly uncommon occurrence, and human experience is that rashes can occur for many reasons. The nurse has not explained her basis for stating this rash was caused by carpet beetle. c. There is insufficient evidence before the Tribunal confirming that there was even carpet beetle in these premises. d. The record is not particularly clear, where it states that there has been a rash for a one month period from the carpet beetle, but the evidence is that for most of that month the tenant was in Japan.
The tenant has not established a basis to order medical costs.

LANDLORDS CLAIMS

The landlord seeks compensation for damage to a window, door and carpet. Window glass
In relation to the broken window, the landlord states that a window was repaired that had been caused by carelessness on the part of the tenant. The landlord seeks costs to reglaze the window for $180.00, which was repaired after the tenant left the premises. The landlord states that the window was broken and tapped over.
In response the tenants say that the glass was broken when wind blew a tree into the window, and the landlord was informed of that. The tenant says that the landlord screwed the window stay into the frame, which caused the frame to crack. The tenant accepted that they had left the window open, and is not otherwise sure if they would be responsible for that. Analysis
Where a landlord claims compensation for damage caused by a tenant, the landlord must firstly prove the damage 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.
Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
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.
In this case, I am not persuaded that a broken window would be classed as fair wear and tear. The onus then shifts to the tenant to prove that the damage was not caused carelessly or intentionally. Certainly I accept the broken window was not intentionally broken by the tenants, but the tenants have not satisfied me that the damage was not carelessness. The tenants seem to accept that the window was open, and that it was windy. It is generally the case that when strong winds are present, people shut their windows to avoid the window being caught by the breeze, and broken. It could be accepted therefore, that failing to shut the wind amounted to carelessness. I find the tenant is liable for the cost of the window repair, being $180.00. Wardrobe door holes
The landlord states that there were holes in the wardrobe door. The landlord referred to photographs of a door, which I accept show holes in the door.
The tenants accept they are liable for the door repair.
The parties agreed that $100.00 compensation would be paid as full and final settlement of the door damage. Carpet
The landlord states that the carpet was stained, and the cost to replace the carpet in room 1 was $700.00. The landlord states that he has owned the premises since 2014, and the carpet was near new then. The landlord referred to photographs taken when the tenancy was first rented to the tenants. The landlord says that the tenants lived in the premises for three years, and they did not raise any concerns around carpet beetles or problems with the carpet, noting this was only an issue in this one room.
The tenants consider the state of the carpet was very poor, and state that they had put down their own carpet on top of the carpet for the tenant. The tenants dispute that they should be liable for the cost of the carpet replacement. Analysis
This claim is finally balanced, but I have determined that the landlord has not established liability for the carpet on the part of the tenants. As I have discussed above, tenants are not responsible for fair wear and tear of the premises. The fact is that residential dwellings wear out, and given time replacement of various parts of the dwelling is necessary, certainly that is the case with carpet.
I note that the Inland Revenue depreciation guides (IR 265) estimates that the average useful life of carpet in a residential tenancy is eight years. By that measure this carpet is beyond that useful life.
I am also minded that the landlord has a further hurdle, which is that there is limited evidence as to the state of the carpet when the tenancy started. The landlord has provided two photographs which I said to be the premises before they were rented to the tenant, and while the carpet can be seen, the standard of the photographs is such that it is difficult to draw any conclusions as to the state of the carpet with the tenancy commenced.
This claim must be dismissed because the landlord has not established the damage to be beyond fair wear and tear.

DISPOSAL OF GOODS

The landlord seek orders in relation to goods left on the premises, with reference photographs.
The tenants state that the goods were left on the premises because they were effected by carpet beetles, and further given the effect of the trespass notice. The tenant advised they will remove the goods this weekend.
The landlord was agreeable to the tenants coming to get the goods this with notice,.
Following discussion it was agreed that the tenants have one week to remove goods at the premises. The landlord confirmed that the planter boxes can be left on site, but if the tenant wants to remove them, they will need to make good the ground underneath the boxes. The piles off wood on site must be removed. Analysis
Section 40 of the RTA sets out the tenants responsibilities, and that at the end of the tenancy the tenant will “quit the premises. and “remove all his or her goods from the premises”.
I am hopeful that the goods issues will be addressed by the tenant removing the goods, but in the event that does not occur, then I have made an order for the disposal of goods.
However, in the event that the goods are not removed by 9:00am on 7 February 2024, the landlord may dispose of the goods. In the event that the landlord incurs additional cost disposing of those goods, the landlord may seek further orders from the Tribunal, for compensation in relation to the disposal cost.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case both parties have applied for name suppression, but it cannot be said that either party has been wholly or substantially successful in the claims, therefore name suppression is declined.

At a glance

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

TENANCY AGREEMENTS

BOND

HARASSMENT

HEALTHY HOMES STANDARDS

COMPENSATION

LANDLORDS CLAIMS

DISPOSAL OF GOODS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

TENANCY AGREEMENTS

BOND

HARASSMENT

HEALTHY HOMES STANDARDS

COMPENSATION

LANDLORDS CLAIMS

DISPOSAL OF GOODS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions