What was Tenancy Tribunal case 4642392 about?

The tribunal order states: Ryan Holmes and Efren Monicayo must pay [The landlord/s] $237.95

How much money was awarded in case 4642392?

Filing Fee: $20.44 awarded to landlord; Fixed Term Break Costs: $660.10 awarded to landlord; Property Damage: $16.00 awarded to landlord; Rent Arrears: $291.41 awarded to landlord; To Lawn: $500.00 awarded to landlord; To Walls: $690.00 awarded to landlord

What type of tenancy dispute was case 4642392?

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

Where can I read the official tribunal order for case 4642392?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9664836-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4642392 about?

The tribunal order states: Ryan Holmes and Efren Monicayo must pay [The landlord/s] $237.95

How much money was awarded in case 4642392?

Filing Fee: $20.44 awarded to landlord; Fixed Term Break Costs: $660.10 awarded to landlord; Property Damage: $16.00 awarded to landlord; Rent Arrears: $291.41 awarded to landlord; To Lawn: $500.00 awarded to landlord; To Walls: $690.00 awarded to landlord

What type of tenancy dispute was case 4642392?

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

Where can I read the official tribunal order for case 4642392?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9664836-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4642392 — Property damage

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Reasons

Claims and awards in Tenancy Tribunal application 4642392 — net $237.95 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 15 July 2023	$291.41	Rent arrears to 15 July 2023
Lock/key replacement	$16.00	Lock/key replacement
Repairs: to walls	$690.00	Repairs: to walls
Repairs: to lawn	$500.00	Repairs: to lawn
Fixed term break costs	$660.10	Fixed term break costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$237.95
Total payable by Tenant to Landlord	$237.95

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.

The tenancy commenced on 23 December 2020 for a fixed term to 16 January 2022. A further fixed term was entered in with an end date of 14 January 2024. The tenants sought agreement from the landlord in June 2023 to end the tenancy early.

How much is owed for rent?

The landlord seeks rent to 20 July 2023, being the day before the tenancy of the new tenants commenced. The tenants believe an agreement was reached with the landlord that the tenancy would end on 11 July 2023, and therefore they have no liability for rent after that date. The tenants have paid rent to 11 July 2023; the sum disputed is rent from 12 July to 20 July 2023.

The tenants signed an “Agreement for early termination of a fixed term tenancy” with the landlord on 22 June 2023. The agreement sets out: The fixed term shall now terminate on a date yet to be decided, which will be determined once the landlord has a new tenancy agreement, which has been signed by the incoming tenant/s and the incoming tenant/s have paid all monies due to be paid under the new tenancy agreement which is now unconditional. The outgoing tenant/s agree to pay rent to the agreed termination date, yet to be determined, and the outgoing tenant/s agree to vacate the property FIVE (5) days early and grant possession to the landlord/agent property manager at that time. The outgoing tenant/s agree/s that these FIVE (5) days are to enable the landlord to complete a final inspection and to complete cleaning to the standard of “reasonably clean and tidy” and may conduct a test for contaminants.

On 23 June 2023 the landlord sent the tenants an email which included: With your settlement being Friday 7 th [July] 1 , we could make your last day in the property Monday 10 th , with a new tenancy beginning Tuesday 18 th – if that works for you?

The tenants believe the landlord in sending this email had determined that the tenancy would end on Monday 10 July.

After considering all evidence presented I find there was no agreement between the parties that the tenancy would end on 10 July. I find the landlord’s text on 23 June was the property manager suggesting a timeframe for when a new tenancy could start as a way of her making sure she understood the potential date correctly. The remainder of that email made it clear that no prospective tenants had been considered at the time the email was sent and additionally the agreement signed by the tenants the day before set out the termination date would not be determined until a new tenancy agreement was signed, and monies paid, by the incoming tenants.

I find the tenants are liable for rent to 15 July 2023. The new tenancy started on 21 July and the landlord claims rent until 20 July. However the early termination 1 I have added [July] to give a timeframe to the email. agreement includes a term that the tenants will vacate five days before the termination date and that the landlord is granted possession of the property at that time. This clause is unenforceable. Tenants are not liable for rent once a landlord has possession of the property. A tenant is entitled to the exclusive use of a tenancy premises while a tenancy is in place. This is at the foundation of all residential tenancies and is embodied in s 38 of the Residential Tenancies Act 1986 (RTA).

Section 11, RTA makes any term that is inconsistent with the provisions of a tenancy agreement or the provisions in the RTA unenforceable. This is particularly the case where it involves any right or power conferred by the RTA on tenants.

The landlord has raised that the five days rent is a cost to the landlord for the tenancy ending early, however it is not a cost contemplated under section 44A as it is not a cost incurred by the landlord. It is reasonable for a landlord to expect to carry out work, particularly maintenance and cleaning, between tenancies.

Accordingly I find rent is due to 15 July 2023 being the final day the tenants had the right to possession of the property.

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. See section 40(1)(e)(ii)-(v) RTA.

The tenants did not return all the keys. The amount claimed is proven and the tenants have accepted liability for payment of this claim.

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 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.

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:

Repairs to wall: Damage was caused during the tenancy to 5 walls in the lounge and laundry area in the garage. Plastering and sanding were generally carried out to a workmanlike standard prior to the tenancy ending. The areas repaired/replastered were painted only, rather than each wall that was repaired being painted from corner to corner. The photographs provided by the landlord show the painted patches are obvious and not an exact colour match to the rest of the walls.

The District Court has found that touching up cupboards with paint that did not match the primary colour of the cupboards is intentional damage 2 . Likewise I find that painting only the repaired areas of the walls with paint that is not an exact colour match or is done in such a way that the repairs stand out, is intentional damage.

I find the costs claimed are reasonable for the work involved.

Repairs to Lawn: The tenancy agreement enabled the tenants to have dogs at the property. The lawn was damaged by the dogs during the tenancy. The tenants carried out work on the lawn and distributed grass seed before the end of the tenancy.

After considering the photographs taken after the tenants had carried out work on the lawn, I am not persuaded that the lawn was sufficiently level to re-seed and result in a reasonable lawn. The area is not level, but is very uneven and has numerous clods of dirt.

I am satisfied the landlord needed to re-level the lawn and resow grass seed for the lawn to be in the condition it was at the start of the tenancy. The damage is intentional as the tenants would have known the damage their dogs were causing. The quote for the lawn work is $500.00 which in this case I find to be reasonable for the work needed. 2 HomeLet Property Management Ltd v Grindley-Alovili [2019] NZDC 4700. Are the tenants liable to pay expenses for early termination of the fixed term tenancy?

A landlord who agrees to an early termination of a fixed term tenancy is entitled to recover from the outgoing tenants any reasonable expenses incurred by the landlord in respect of the early termination. (section 44A(1), RTA).

Before seeking to recover any expenses a landlord must provide an itemised account of the expenses to the tenant (s 44A(2)). The landlord provided an itemised account of expenses to the tenants.

The itemised account included $199.00+gst for advertising, and $90.00+gst for drafting a new tenancy agreement and signing it with the new tenant/s 3 . At the hearing the parties agreed the tenants would pay the reduced sum of $100+gst for advertising and $45.00+gst for drafting and signing the new agreement.

I find the other costs itemised are payable by the tenants except for the cost of testing for methamphetamine ($289.00+gst claimed). The property manager’s evidence is that the actions of the tenants provided no reason for the landlord to consider that a test was needed. The tenants did not contract to pay for methamphetamine testing at the end of the tenancy and it is not usual for costs for these type of tests to be sought from outgoing tenants unless the test results establish that methamphetamine contamination has occurred during the tenancy. 4

I differentiate these costs from other costs the landlord has sought under s44A and has been awarded on the basis that it is not a cost which the landlord is forced to incur (such as advertising costs, reference checks etc) in consenting to the tenancy terminating early. I have been referred to other Tribunal decisions where methamphetamine costs have been awarded, however each case is considered on its own merits and regardless, I am not bound by other Tribunal decisions.

As the landlord has substantially succeeded with the claim, I have reimbursed the filing fee.

The landlord has made an application for suppression and as they have been successful in their claim they are entitled to suppression of their name and identifying particulars of the tenancy. (see section 95A(1)).

Reasons

Claims and awards in Tenancy Tribunal application 4642392 — net $237.95 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 15 July 2023	$291.41	Rent arrears to 15 July 2023
Lock/key replacement	$16.00	Lock/key replacement
Repairs: to walls	$690.00	Repairs: to walls
Repairs: to lawn	$500.00	Repairs: to lawn
Fixed term break costs	$660.10	Fixed term break costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$237.95
Total payable by Tenant to Landlord	$237.95

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 tenants believe the landlord in sending this email had determined that the tenancy would end on Monday 10 July.

Accordingly I find rent is due to 15 July 2023 being the final day the tenants had the right to possession of the property.

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

The tenants did not return all the keys. The amount claimed is proven and the tenants have accepted liability for payment of this claim.

Is the tenant responsible for the damage to the premises?

The following damage was caused during the tenancy:

I find the costs claimed are reasonable for the work involved.

Before seeking to recover any expenses a landlord must provide an itemised account of the expenses to the tenant (s 44A(2)). The landlord provided an itemised account of expenses to the tenants.

As the landlord has substantially succeeded with the claim, I have reimbursed the filing fee.

Tenancy Tribunal case 4642392 — Property damage

At a glance

Tenancy Tribunal case 4642392 — Property damage

At a glance

Award balance

Claims & awards

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?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

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?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions