What was Tenancy Tribunal case 4645509 about?

The tribunal order states: No application for suppression has been made in this case but the Tribunal orders

How much money was awarded in case 4645509?

Rent Arrears: $388.56 awarded to landlord

What type of tenancy dispute was case 4645509?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4645509?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9388431-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4645509 about?

The tribunal order states: No application for suppression has been made in this case but the Tribunal orders

How much money was awarded in case 4645509?

Rent Arrears: $388.56 awarded to landlord

What type of tenancy dispute was case 4645509?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4645509?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9388431-Tribunal_Order_Redacted.pdf.

30 Leckhampton Court, Clyde Hill, Dunedin 9011 Tenancy Tribunal Case 4645509 — Rent arrears

Claims and awards in Tenancy Tribunal application 4645509 — net $388.56 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 7/9/2023 as agreed	$388.56	Rent arrears to 7/9/2023 as agreed
Net award	$388.56
Total payable by Tenant to Landlord	$388.56

Order

No application for suppression has been made in this case but the Tribunal orders suppression of the Tenant name and identifying details.
The application by Causeway Group Limited for termination of the tenancy and compensation of $1,351.25 is dismissed.
[The tenant/s] must pay Causeway Group Limited $388.56 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
In addition, the landlord seeks compensation of $1,351.25 for repairs to a hole in a door and ripped wallpaper.
Although the landlord’s application did not include rent arrears the tenant agreed that arrears could be included in the claim.
The tenant provided a letter from MSD confirming that a mistake had been made in not increasing the redirection amount when the rent recently increased.
The tenant submitted this mistake had led to the arrears and agreed to an order being made for the amount sought.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable of remedy where the thing done, or its effect, cannot be undone.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
The landlord submits that the tenant has breached her obligations by smoking marijuana in the premises in breach of section 40(2)(b).
In support of the claim the landlord submitted photographs of a bong taken in the inspection on 1/8/2023.
On the other hand, the tenant provided a letter from her doctor confirming that he prescribed medicinal cannabis to the tenant for a health condition.
In the letter the doctor agreed that while the medicinal cannabis was not illegal the smoking of medicinal cannabis fell under the Misuse of Drugs Act.
The Doctor suggested smoking of medicinal cannabis was commonplace because of the $2,000.00 costs of the Government supported vaporiser.
The landlord disputed the costs of the vaporiser which from research she believed was $669.00.
Although some authorities consider that a breach of a negative covenant is not always incapable of remedy, in Herewini v Housing New Zealand Corporation CIV 2006-069-144 the Court found that possession of cannabis was not a breach capable of remedy. The Court considered that the offence was minor, and it was not inequitable to refuse to terminate the tenancy.
I consider that the breach is very minor because although the possession of the prescribed medicinal cannabis is legal, smoking medicinal marijuana is an unlawful act.
Section 40(2)(b) provides that, among other matters a tenant shall not use premises, or permit the premises to be used for any unlawful purpose.
As I have found the evidence supports that the tenant used the premises for an unlawful purpose, I must consider whether it is inequitable to refuse to terminate the tenancy.

Is it inequitable to refuse to terminate the tenancy?

In exercising the discretion under section 56 I need to consider whether it would be inequitable to refuse to terminate the tenancy.
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the Court at paragraph 61 set out the factors which are relevant to whether it would be inequitable to refuse to terminate a tenancy: a. The history of the tenancy b. Whether there has been a persistent failure after repeated warnings c. Whether the history of breaches was such it was unlikely the tenant would comply with her obligations in the future d. Whether the breach was inadvertent or deliberately committed e. The conduct of the landlord f. The gravity of the breach g. Whether termination is a proportionate response to the breach.
The tenancy began on 23/7/2022 and was recently renewed.
The evidence of the tenant was that she was not aware of the termination issue until after the landlord had filed the application.
The tenant suggested all she was aware of was the damage to the door after the 14 day notice and she had repaired that before the follow up inspection.
Due to the costs of the vaporiser the tenant submitted that she was unable to afford any thing other than the bong which she had made herself.
The tenant denied smoking the marijuana inside the premises.
The question for the Tribunal is having established that the tenant breached her obligations under the legislation, is whether as a matter of proportionality termination is an inequitable response having regard to the tenant’s conduct throughout the tenancy and the likelihood of her complying in the future with her obligations.
Termination of a tenancy has serious consequences for a tenant.
I consider having regard to the facts of this case that it would be inequitable to terminate the tenancy and out of all proportion to the very minor nature of the unlawful act: a. The marijuana is prescribed for a medical condition and therefore possession of it by the tenant is not illegal, b. The only illegality is smoking with the bong, which is not used inside, c. The only other issue during the term of the tenancy has been rent arrears which were not the fault of the tenant d. The landlord did not give the tenant notice of the breach before making the application for termination.
The application for termination of the tenancy fails.

Is the tenant responsible for damage to the premises?

The landlord claimed compensation for what she considered intentional damage as follows: a. $833.75 for repairs to a hole in the rumpus room door b. $517.50 for repair of ripped wallpaper in the hallway
In support of the claim the landlord provided quotes, the initial property inspection report of 23/7/2022 and an inspection report and photographs dated 1/8/2023.
The landlord submitted that the repairs to the door made by the tenant were not acceptable to the owner.
The landlord did not know the age of the wallpaper.
In response the tenant agreed that she had damaged the door by putting a hole in it during a health issue but had engaged someone to repair the damage.
Had she known the repair was unacceptable the tenant said she would have taken steps to further repair the door.
For the wallpaper the tenant agreed that her children may have contributed to the paper peeling.
The tenant submitted that the wallpaper, which she described as “well loved” was peeling in several areas in the premises and she had previously mentioned this to the landlord.
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.
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. See Guo v Korck [2019] NZHC 1541.
I find the hole in the door was caused during the tenancy and based on the evidence of the tenant was intentional.
However, the claim for compensation for repair of the door fails because there is insufficient evidence to persuade me why the repair undertaken by the tenant was not acceptable and why a replacement door is necessary.
In the initial property inspection report the condition of the door is recorded as “General wear & tear”.
The repairs to the door undertaken by the tenant, as evidenced in the photograph, I consider bring the door to the same state it was in at the beginning of the tenancy.
I consider the evidence supports that the damage to the wallpaper is fair wear and tear.
The initial property inspection report from the beginning of the tenancy records that the walls in the hallway were in “fair condition”.
It is not unreasonable to expect that already ripped wallpaper, which the landlord was aware of, may be subject to further damage in a tenancy where there are young children.
The tenant is not liable to compensate the landlord for wear and tear.
No filing fee is awarded because the landlord has been unsuccessful in her claims, apart from the agreed rent arrears.
Suppression is granted to the tenant under section 95A because I consider it is in the tenant’s interest to do so.

Claims and awards in Tenancy Tribunal application 4645509 — net $388.56 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 7/9/2023 as agreed	$388.56	Rent arrears to 7/9/2023 as agreed
Net award	$388.56
Total payable by Tenant to Landlord	$388.56

Order

No application for suppression has been made in this case but the Tribunal orders suppression of the Tenant name and identifying details.
The application by Causeway Group Limited for termination of the tenancy and compensation of $1,351.25 is dismissed.
[The tenant/s] must pay Causeway Group Limited $388.56 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
In addition, the landlord seeks compensation of $1,351.25 for repairs to a hole in a door and ripped wallpaper.
Although the landlord’s application did not include rent arrears the tenant agreed that arrears could be included in the claim.
The tenant provided a letter from MSD confirming that a mistake had been made in not increasing the redirection amount when the rent recently increased.
The tenant submitted this mistake had led to the arrears and agreed to an order being made for the amount sought.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable of remedy where the thing done, or its effect, cannot be undone.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
The landlord submits that the tenant has breached her obligations by smoking marijuana in the premises in breach of section 40(2)(b).
In support of the claim the landlord submitted photographs of a bong taken in the inspection on 1/8/2023.
On the other hand, the tenant provided a letter from her doctor confirming that he prescribed medicinal cannabis to the tenant for a health condition.
In the letter the doctor agreed that while the medicinal cannabis was not illegal the smoking of medicinal cannabis fell under the Misuse of Drugs Act.
The Doctor suggested smoking of medicinal cannabis was commonplace because of the $2,000.00 costs of the Government supported vaporiser.
The landlord disputed the costs of the vaporiser which from research she believed was $669.00.
Although some authorities consider that a breach of a negative covenant is not always incapable of remedy, in Herewini v Housing New Zealand Corporation CIV 2006-069-144 the Court found that possession of cannabis was not a breach capable of remedy. The Court considered that the offence was minor, and it was not inequitable to refuse to terminate the tenancy.
I consider that the breach is very minor because although the possession of the prescribed medicinal cannabis is legal, smoking medicinal marijuana is an unlawful act.
Section 40(2)(b) provides that, among other matters a tenant shall not use premises, or permit the premises to be used for any unlawful purpose.
As I have found the evidence supports that the tenant used the premises for an unlawful purpose, I must consider whether it is inequitable to refuse to terminate the tenancy.

Is it inequitable to refuse to terminate the tenancy?

In exercising the discretion under section 56 I need to consider whether it would be inequitable to refuse to terminate the tenancy.
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the Court at paragraph 61 set out the factors which are relevant to whether it would be inequitable to refuse to terminate a tenancy: a. The history of the tenancy b. Whether there has been a persistent failure after repeated warnings c. Whether the history of breaches was such it was unlikely the tenant would comply with her obligations in the future d. Whether the breach was inadvertent or deliberately committed e. The conduct of the landlord f. The gravity of the breach g. Whether termination is a proportionate response to the breach.
The tenancy began on 23/7/2022 and was recently renewed.
The evidence of the tenant was that she was not aware of the termination issue until after the landlord had filed the application.
The tenant suggested all she was aware of was the damage to the door after the 14 day notice and she had repaired that before the follow up inspection.
Due to the costs of the vaporiser the tenant submitted that she was unable to afford any thing other than the bong which she had made herself.
The tenant denied smoking the marijuana inside the premises.
The question for the Tribunal is having established that the tenant breached her obligations under the legislation, is whether as a matter of proportionality termination is an inequitable response having regard to the tenant’s conduct throughout the tenancy and the likelihood of her complying in the future with her obligations.
Termination of a tenancy has serious consequences for a tenant.
I consider having regard to the facts of this case that it would be inequitable to terminate the tenancy and out of all proportion to the very minor nature of the unlawful act: a. The marijuana is prescribed for a medical condition and therefore possession of it by the tenant is not illegal, b. The only illegality is smoking with the bong, which is not used inside, c. The only other issue during the term of the tenancy has been rent arrears which were not the fault of the tenant d. The landlord did not give the tenant notice of the breach before making the application for termination.
The application for termination of the tenancy fails.

Is the tenant responsible for damage to the premises?

The landlord claimed compensation for what she considered intentional damage as follows: a. $833.75 for repairs to a hole in the rumpus room door b. $517.50 for repair of ripped wallpaper in the hallway
In support of the claim the landlord provided quotes, the initial property inspection report of 23/7/2022 and an inspection report and photographs dated 1/8/2023.
The landlord submitted that the repairs to the door made by the tenant were not acceptable to the owner.
The landlord did not know the age of the wallpaper.
In response the tenant agreed that she had damaged the door by putting a hole in it during a health issue but had engaged someone to repair the damage.
Had she known the repair was unacceptable the tenant said she would have taken steps to further repair the door.
For the wallpaper the tenant agreed that her children may have contributed to the paper peeling.
The tenant submitted that the wallpaper, which she described as “well loved” was peeling in several areas in the premises and she had previously mentioned this to the landlord.
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.
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. See Guo v Korck [2019] NZHC 1541.
I find the hole in the door was caused during the tenancy and based on the evidence of the tenant was intentional.
However, the claim for compensation for repair of the door fails because there is insufficient evidence to persuade me why the repair undertaken by the tenant was not acceptable and why a replacement door is necessary.
In the initial property inspection report the condition of the door is recorded as “General wear & tear”.
The repairs to the door undertaken by the tenant, as evidenced in the photograph, I consider bring the door to the same state it was in at the beginning of the tenancy.
I consider the evidence supports that the damage to the wallpaper is fair wear and tear.
The initial property inspection report from the beginning of the tenancy records that the walls in the hallway were in “fair condition”.
It is not unreasonable to expect that already ripped wallpaper, which the landlord was aware of, may be subject to further damage in a tenancy where there are young children.
The tenant is not liable to compensate the landlord for wear and tear.
No filing fee is awarded because the landlord has been unsuccessful in her claims, apart from the agreed rent arrears.
Suppression is granted to the tenant under section 95A because I consider it is in the tenant’s interest to do so.

Tenancy Tribunal case 4645509 — Rent arrears at 30 Leckhampton Court, Clyde Hill, Dunedin 9011

At a glance

Tenancy Tribunal case 4645509 — Rent arrears at 30 Leckhampton Court, Clyde Hill, Dunedin 9011

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Is it inequitable to refuse to terminate the tenancy?

Is the tenant responsible for damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Is it inequitable to refuse to terminate the tenancy?

Is the tenant responsible for damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions