What was the outcome of Tenancy Tribunal case 4637799?

The tribunal order states: The Tribunal declines the parties’ requests for name suppression.

How much money was awarded in case 4637799?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4637799?

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

Where can I read the official tribunal order for case 4637799?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9405628-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4637799?

The tribunal order states: The Tribunal declines the parties’ requests for name suppression.

How much money was awarded in case 4637799?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4637799?

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

Where can I read the official tribunal order for case 4637799?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9405628-Tenancy_Tribunal_Order.pdf.

12 Brookdale Drive, Ngongotaha, Rotorua 3010 Tenancy Tribunal Case 4637799 — Rent arrears

Order

The Tribunal declines the parties’ requests for name suppression.
Bond Services is to make a split payment of the Bond to the parties on the following basis: DescriptionLandlord Rent arrears to 12 April 2023$471.43 Cleaning$158.59 Carpet Cleaning (Lounge)80.00 Replacement Key (Bathroom/Toilet Window)$7.00 Curtain Replacement$97.00 Contribution to Cabinet Replacement$200.00 Total award$1014.02 Bond to Landlord- $1,014.02 Bond to Tenant$1,025.98

Reasons

Both parties attended the hearing.
The Landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

The tenancy ended on 12 April 2023. The Landlord provided rent records which prove the amount owing at the end of the tenancy: $471.43
The Tenants agree this amount is owing.

How much is owed for power?

The Landlord claims power consumption for the period it was required following the tenancy, so repairs and maintenance could be completed.
Section 39 of the Residential Tenancies Act 1986 (the Act) states: Responsibility for outgoings (1) The landlord is responsible for all outgoings in respect of the premises that— (a) are incurred whether or not the premises are occupied; and (b) are incurred for common facilities. (2) Without limiting the generality of subsection (1), the landlord is responsible for the cost of— (a) the general rate (within the meaning of section 13 of the Local Government (Rating) Act 2002) payable in respect of the premises; and (b) insurance premiums payable in respect of the premises; and (c) any body corporate levies payable in respect of the premises. (3) The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities. (4) Without limiting the generality of subsection (3), the tenant is responsible for the following charges, incurred during the tenancy, in respect of the premises: (a) electricity and gas: (b) telephone and Internet: (c) supply of water if the water supplier charges for water provided to the premises on the basis of consumption. (5) In this section, premises includes facilities that are exclusively for the use of the tenant.
Power is not recoverable under s 39 as it is not a cost attributable to the tenant’s occupation of the premises (s 39(3) RTA) during the tenancy (s 39(4) RTA).
Pursuant to s 85, considering the general principles of law, the provisions of this Act, with a view to achieving a fair and just outcome, I find: a. The RTA creates a strong presumption that tenants are to be only responsible for outgoings incurred during their occupancy, with landlords responsible for various outgoings related to the premises, including those that occur regardless of occupancy. This prevents arbitrary and inflated claims by landlords for charges which a tenant could not reliably gauge or control. b. A landlord is entitled to claim consequential losses which flow from breaches by the tenant of the tenancy agreement or RTA. c. While a landlord can seek compensation for losses due to a tenant's breaches, such claims must be directly related to the breach and not overly remote. d. While I would be prepared to consider additional power consumption at the premises a cost a landlord could claim where the consumption was directly connected with activities required to restore premises because of a breach of the tenancy agreement by the tenant (e.g. damage which is not fair wear and tear), the Landlord would, in accordance with the intent of s 39, have to posit a more accurate and precise method for measuring the exact power consumption required for its restoration of the premises in order for the tenant to be liable to pay it. e. I do not find the Landlord has provided a methodology which meets those requirements. Accordingly, I decline this claim.

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

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: s 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
The Tenants did not leave the premises reasonably clean and tidy. They accept the cleaning costs of $158.59. Similarly, they accept the cost of carpet cleaning in the lounge: $80.00.
The Tenants lost the key to the bathroom and toilet window. They agree to pay $7.00.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is 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.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The following damage was caused during the tenancy:
Curtain Damage: I have considered the evidence of both parties. I find the Landlord has not established the curtain damage was more than fair wear and tear in this home. The Landlord claims the condition of the curtains deteriorated during the tenancy because the Tenants washed them. The Tenants say they washed the curtains frequently to prevent mould and mildew growth, which was a problem in the end two bedrooms. Upon moving in, the property did not come with nettings and therefore, the Tenants installed their own. DampRid moisture absorbers were placed in each toom along with additional ones in all wardrobes. The Tenants raised the following concerns with the property manager numerous times: a. Water dripping from windows and doors could be heard in the mornings through winter. The Tenants have provided pictures of condensation inside the home, taken during winter. b. Wood surfaces started producing mould along with certain materials of clothing and shoes. The Tenants have provided pictures of mould growth inside the home, showing significant mould growth on the Tenant’s property. c. The ceiling in the end room had mould appearing every week regardless of how many times we cleaned it. It got to a point where the Tenants had to move their son to the front room due to health concerns. d. The cost of replacing the curtains, $397 as claimed by the Landlord, is high, considering their quality.
An email from the Property Manager on 20 July 2022, in summary, states: “I am seeking more advice on what can be done [about the mould]. Older houses can be prone to moisture ingress and heating [sic].” “Tenancy services say that mould/dampness is a joint responsibility of the landlord and the tenant. The landlords responsibility is that a house should be mould free when a tenant moves in and meet the Healthy Homes standards which it does...” “The property is fully compliant and the heat transfer system is an extra.” “The windows and doors are compliant in the Healthy Home report, they measure around the windows and door frames and if there is a gap more than 3mm then they have to be draught stopped, the report says there are no gaps more than 3 mm.” “There has never been mould/dampness issue in the past and I cant understand why it is suddenly so bad.” “Tenants can provide their own plug in heaters for bedrooms and some even get dehumidifiers.”
In Warwick Todd Ltd v Tapper TT1381/02, Christchurch, 14/089/2002, it was said: “A tenant must also tell the landlord where there is a mould problem so that the necessary action can be taken. The landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, such as bad construction or water lying under the premises, the landlord has the responsibility to remedy the fault. Premises must be able to be used and lived in, in the normal responsible way, without mould developing. If this cannot be done then it is the landlord problem. If the tenant fails to ventilate and heat appropriately when heating and ventilation is available, then it is the tenant’s problem.”
One of the Tenants works night shift and at times he is asleep in the bedroom with the doors and windows closed.
People produce moisture through activities like breathing and sweating. While everyone exhales moist air, the amount of sweat can vary based on genetics, fitness level, environment, and certain health conditions. However, condensation, which occurs when warm, moist air meets a colder surface, is more influenced by environmental conditions than individual moisture production. So, while some individuals might produce more moisture due to factors like heavy breathing or excessive sweating, the presence of condensation is largely dictated by the surrounding environment.
The Landlord claims that the Tenants also had a dry cleaner which was venting into the home. The Tenants say this was only for a short while, before they moved the dry cleaner into the garage, but it was not clear exactly when this occurred.
The following statement, by the property manager to the Tenant, suggests acknowledgment of a wider, more systemic issue with the home: “Older houses can be prone to moisture ingress and heating [sic].”
The home may comply with the Healthy Homes Standards. However, while a report is referred to by the property manager, but it was not produced in evidence.
The Tenants were evidently taking steps to combat the mould by relocating their dryer, removing moisture from windows and actively cleaning the curtains.
In my view, they could have done more to ventilate the bedroom, but the mould growth is not localised to this area, it is present in both bedrooms and throughout the home.
The Landlord’s assertion that the curtains' condition deteriorated because the Tenants washed them is contested by the Tenants’ claim that they did so to prevent mould growth. Given the consistent evidence of mould and dampness in the property and the lack of a Healthy Homes report to contradict this, the weight of the evidence leans towards the Tenants’ claim. The cost of the curtain replacement also seems high in relation to their quality.
Further, the presence of condensation and its effects are not solely a result of human activities within the house but are majorly influenced by the external environment. The Tenant’s use of a dry cleaner, though brief and relocated to the garage, might have contributed to some of the moisture, but given the broader evidence of moisture problems in the house, it is unlikely that this was the sole or even a significant contributor.
In conclusion, based on the evidence, the Landlord has not satisfactorily demonstrated that the damage to the curtains was beyond what would be expected from fair wear and tear, especially considering the persistent mould and moisture issues inherent to the property. The responsibility for the curtain damage, in this case, cannot be squarely placed on the Tenants, and their claims seem well-founded given the circumstances. I award $97.00.
Broken Glass Lounge Ceiling Light: I accept the Tenant’s claim that the ceiling light glass pane fell in a gust of wind. The light fitting is itself quite dated and it appears the mechanism holding the glass pane in place has loosened causing it to come free and fall to the ground and smash. This was consistent with the Tenant’s evidence.
Kitchen Cabinet and Kickboard: The parties could not agree on the cause of moisture ingress at the base of the kitchen cabinet and kickboard. A representative from the firm who removed and replaced the cabinet and kickboard was called during the hearing. The representative, a joiner, had not done the work himself but knew of the job and had seen the damaged cabinet and kickboard in the workshop following its removal and said the moisture ingress was substantial and there must have been a lot of water behind and in close proximity to the base of the cabinet and kickboard to cause this kind of damage.
The Tenants were not aware of any flooding or pooling of water or other liquid but acknowledged having mopped in the area and notices the condition of the base of the cabinet deteriorating on the left-hand side near to the fridge. The Tenant said they stopped mopping this area and were very careful to not let water around it. The Tenants lived in the home for less than a year.
The product used is prone to moisture ingress and notwithstanding its low cost and common use it is not durable. The representative, referred to in paragraph 33 above, explained how a pool of water left in the vicinity of the particle board cabinet for a period of eight (8) hours would begin to cause lasting damage, and this would suggest the material is not particularly suitable for use in areas where spillages are more frequent. Even if liquid spillages are cleaned, if water were to penetrate the kick board and get trapped behind it, there would be nothing which could be done to remove it and prevent lasting damage.
The presented evidence points toward a combination of potential causes for the damage. The cabinet's placement near the fridge, an appliance that can sometimes produce condensation or minor leaks, combined with the occasional mopping by the tenants and the inherent vulnerability of the used material, all converge to explain the moisture ingress.
While the tenants did admit to mopping and noticed some deterioration, they also took measures to mitigate any potential damage once they became aware of it, wiping the surface by hand and drying after mopping. On the other hand, given the material’s susceptibility to moisture ingress and the representative’s insights about its unsuitability in areas prone to spills or moisture, there seems to be a significant product and possibly design flaw.
In conclusion, while the tenants might have inadvertently contributed to the moisture ingress due to routine cleaning, the choice of material and its inherent weaknesses play a pivotal role in the observed damage. The responsibility seems to be shared, with a significant portion leaning towards the unsuitability of the material for the given environment.
I have limited evidence concerning the age and condition of the cabinet at the start of the tenancy. During the hearing I asked the Landlord for photographs of the cabinet base and kickboard prior to the commencement of the tenancy. The Landlord provided me photos after the tenancy and claimed these showed no damage to the cabinet. I asked him why the flooring was different. He then suggested the flooring was replaced prior to the tenancy. When I pointed out that the flooring in his photograph appeared to be a newer, more modern, wood veneer, he seemed to realise his mistake. He then changed his evidence by stating the photograph was taken after the tenancy. I am not certain whether the Landlord deliberately intended to deceive me. The Landlord did not have photographs showing what I had specifically requested, suggesting the Landlord may well have intended to pass off the photographs as something they were not.
It is unlikely the cabinet was salvageable, but to my mind, this says more about the integrity and inferior quality of the product.
I find the Tenant’s liable to contribute $200.00 to the replacement of the cabinet.
Garage Door Lock Repairs: The Landlord claims the Tenants have damaged the tilt-a-door.
The Tenants say the tilt-a-door never opened from the outside, and they used the garage side-door, lifting the garage tilt-a-door up from the inside. As for the garage side-door, the Tenants say it never worked properly. The door handle mechanism was stiff and would not turn the internal bolt properly, making it hard to open the door. They advised the property manager of this. By the end of the tenancy, the door lock had jammed. They say this was as a result of wear and tear. It is clear the door should have been replaced sooner but was not.
The Tenants say, at the commencement of their tenancy, the garage space was very run down with leftover materials (bricks, wood and fence lines) and cobwebs all over the space. The tilt-a-door is very old, and with the evident lack of garage maintenance, I accept the Tenant’s evidence that it did not open from the outside. I dismiss this claim.
Plumber – Disconnect Tub, Dispose and Reinstate/Laundry Repairs: The Landlord claims water from the Tenants washing machine has caused damage to the laundry tub and flooring. At the hearing, the property manager explained the waste pipe from the washing machine was channelled into a pipe which connected to the laundry tub waste pipe, underneath the tub and out of view, but there was some leak in this pipe.
The insurance assessor initially declined the Landlord’s claim, and later reassessed the claim in light of further information received from the Landlord and granted it. I directed the Landlord to provide all the information it provided to its insurer, including the information provided initially, and the information provided in support of its request for a reassessment. Regrettably, while the Landlord has provided advice from a plumber and the insurers decision to approve the claim based on the plumbers advice, I am not clear what the Landlord initially advised its insurer concerning the cause of the leak and note that some of the insurers response, to the Landlord’s initial claim has been cut off in the additional documents provided. This troubled me, particularly given the Landlord’s oversight, moments earlier, when I requested pre-tenancy photographs of the kitchen cabinet base and kickboards.
The change in the insurers position was based on the Plumber’s advice, as follows: I have had a look at the pictures you have emailed me regarding the laundry area at your rental property... The pictures show a lot of water damage to the front Bottom of the laundry cabinet therefore the flooring under the vinyl would be in the same condition. From my experience and in regards of rental properties ....it is the tenants responsibility to connect there washing machine to the services when they move in. Unfortunately most tenants don’t realise that when they disconnect there washing machine from there last residence that the union washer that creates a water tight seal remains stuck to the tap at their last residence or falls out during transit. Unknowing to them, the reconnect the washing machine hose at both ends and that when the leaking starts. The leak is very slow but over a period of time it can cause a lot of damage to the floor and cabinets. In my opinion it is feasible that the hose connection at the washing machine end (not the tap end) did not have a union washer or not connected properly and slowly leaked behind the washing machine on to the floor, undetected at the start. Causing water damage to the bottom of the cabinet/s and floor. By the time it is detected the damage has already been done. My arrival was when the property was vacated and your existing plumbing and drain pipe was sound with no issues at that time. Ranagh Lines (Lines Plumbing Ltd)
I would have liked to have questioned Ranagh Lines about what he meant by his last statement, that when he called around to make the assessment upon which his findings above are based, this was when the existing plumbing and drainpipe was sound with no issues at that time. Is Mr Line’s suggesting there were issues with the existing plumbing and drainpipe previously?
In conclusion, while the plumber's assessment supports the idea that a tenant's washing machine connection could have caused the leak, the ambiguity in communications between the landlord and insurer, as well as the plumber's unclear final statement, means that more information is required to draw a definitive conclusion. I dismiss this claim. Similarly, I decline the Landlord’s claim for laundry repairs.
I do not grant name suppression to the parties in this case as I consider there are elements of significant public interest discussed which outweigh the parties’ interests in suppression, and it should be left for the public to draw their own conclusions about the parties’ conduct during this tenancy.

Tenancy Tribunal case 4637799 — Rent arrears at 12 Brookdale Drive, Ngongotaha, Rotorua 3010

Tenancy Tribunal case 4637799 — Rent arrears at 12 Brookdale Drive, Ngongotaha, Rotorua 3010

Order

Reasons

How much is owed for rent?

How much is owed for power?

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

Is the tenant responsible for the damage to the premises?

Property management

Order

Reasons

How much is owed for rent?

How much is owed for power?

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

Is the tenant responsible for the damage to the premises?

Property management