What was Tenancy Tribunal case 4645510 about?

The tribunal order states: The Tribunal orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 4645510?

Filing Fee: $20.44 awarded to landlord; Lost Rent: $205.71 awarded to landlord; Bedroom Door: $550.00 awarded to landlord; Walls: $1,425.66 awarded to landlord; Rubbish Removal: $324.00 awarded to landlord

What type of tenancy dispute was case 4645510?

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

Where can I read the official tribunal order for case 4645510?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9669871-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4645510 about?

The tribunal order states: The Tribunal orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 4645510?

Filing Fee: $20.44 awarded to landlord; Lost Rent: $205.71 awarded to landlord; Bedroom Door: $550.00 awarded to landlord; Walls: $1,425.66 awarded to landlord; Rubbish Removal: $324.00 awarded to landlord

What type of tenancy dispute was case 4645510?

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

Where can I read the official tribunal order for case 4645510?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9669871-Tribunal_Order_Redacted.pdf.

99 Bader Street, Bader, Hamilton 3206 Tenancy Tribunal Case 4645510 — Property damage

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4645510 — net $2,525.81 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rubbish removal: including disposal fees and labour	$324.00	Rubbish removal: including disposal fees and labour
Repairs: bedroom door	$550.00	Repairs: bedroom door
Repairs: walls	$1,425.66	Repairs: walls
Three days lost rent	$205.71	Three days lost rent
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,525.81
Total payable by Tenant to Landlord	$2,525.81

Both parties attended the hearing.

On 19 May 2023, the Tribunal terminated the tenancy effective 02 June 2023, awarded the landlord compensation for damage caused by methamphetamine contamination, ordered a refund of the bond, and reimbursement of the filing fee. On 02 August 2023, the landlord filed a claim for rubbish removal, damage, over and above that caused by methamphetamine contamination, and lost rent for time spent repairing the property between 07 July 2023 and 28 July 2023.

The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).

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

The landlord claims that the tenant failed to remove all rubbish.

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) of the Act.

The landlord has produced photographs of the rear of the property taken at the end of the tenancy. The landlord stated they removed three trailer loads to the dump with $72.00 disposal fees per load plus 8 hours labour at $30.00 per hour.

The tenant disputes the claim, arguing that the photographs do not accurately show the rubbish that was removed. The tenant stated that they returned about a week after the end of the tenancy and removed the dog kennels, a tarpaulin, car tyres, wood, a pram, and other items shown in the photographs. From the photographs the tenant accepted responsibility for a “pile” of rubbish.

My assessment is that the “pile” concerned amounts to at least two trailer loads, and on that basis, I award disposal fees of $144.00, and labour cost of 6 hours, a total of $324.00

Is the tenant responsible for damage to the premises?

To succeed with a claim for damage the landlord must prove that damage 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 of the Act.

Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).

Where the damage is careless, and occurs after 27 August 2019, section 49B of the Act 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) of the Act.

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) of the Act. 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) of the Act.

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) of the Act.

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 virtually certain to occur. See Guo v Korck [2019] NZHC 1541.

In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord.

In awarding compensation for damage, the Tribunal must also consider betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful

When the landlord purchased the property, it was occupied by the tenant. On 20 March 2021, the landlord and tenant entered into a new tenancy agreement. There is a pre tenancy checklist, signed by the tenant only dated 27 March 2021. Initially I was advised that although photographs had been taken in March 2021, that these had not been produced, and that those photographs produced had been taken at an inspection on or around June 2022. The landlord was however unable to specify when exactly. Later in the hearing the landlord stated that in fact some of the photographs may have been taken around March 2021, although was unable to identify which ones. I am advised that the end of tenancy photographs were taken in June 2023. Bedroom door

The landlord has produced a photograph of a bedroom door and door frame taken at the end of the tenancy around June 2023, showing damage that has been partially repaired. The landlord has produced a photograph showing the undamaged door taken around 2022. The cost to repair the door and door frame was $690.00. The landlord cannot confirm whether the damage is covered by insurance, or if so, the applicable excess. However, I note the tenancy agreement specifies the excess for damage as $550.00 per claim. The landlord submits that the damage is consistent with having been caused by an intentional act.

The tenant accepts that the damaged occurred during the tenancy but denies that it was intentional stating that it occurred when two of the young male occupants had been “roughhousing” and one “went through the door”.

In my opinion roughhousing causing damage is damage caused carelessly. Based on the evidence, I am satisfied that the damage occurred during the tenancy, is more than fair wear and tear, and is more likely than not the result of carelessness. I award the insurance excess of $550.00. I make no deduction for betterment or depreciation. The door and door frame were undamaged and in a reasonable condition around June 2022. The amount claimed is to repair the damage only. Kitchen cabinetry

The landlord produced photographs showing water damage to the kitchen cabinetry next to the dishwasher. The landlord claims that the damage to the cabinetry is a result of the tenant failing to advise that there was an issue with the dishwasher.

The tenant states that around 12 May 2021, they reported an issue concerning a leak under the sink. The tenant states they raised the issue again in June 2021, after which a plumber visited and fixed the leak.

The landlord stated that a plumber attended 3 or 4 times but could not say when. The landlord stated that they conducted an inspection in 2022 and considered that the damage “wasn’t that bad”. The photographs taken during that inspection show some minor swelling to the particle board. The photographs taken at the end of the tenancy show more significant swelling.

The tenant states that the damage was likely the combination of the leak under the sink and an issue with the dishwasher, which they had reported in 2022. The landlord denied that they were advised of any issue with the dishwasher until around February 2023, when they were told by the tenant that water escaped from the side of the dishwasher but only when it was not closed properly and assumed that it had been remedied.

The tenant has produced a text message dated 11 November 2022, from the landlord advising that someone would look at the dishwasher, to which the tenant has replied “Yip dishwasher fixed”. The next time the dishwasher appears to be raised is around 24 April 2023.

On 26 April 2023, the tenant sent a text message to the landlord stating “ Hi yes seems ok again now , cant have been shut properly”. The landlord stated that they did not personally visit the property to inspect the dishwasher due to fears for their safety, instead relying on the tenant to advise that the matter had been remedied.

The onus is on the landlord to establish that the damage has been caused from an act or omission, in this case the tenant’s failure to report the matter. Neither party can provide an accurate chronology, making it challenging to determine who did what and when. Although the tenant appears to have advised the landlord that the issue with the dishwasher had been addressed, it would in the circumstances have been prudent for the landlord or an agent to attend the property and conduct an inspection themselves. Based on the evidence I am not satisfied that the tenant is liable, and the claim is dismissed. Pantry doors

The landlord claims that the doors to the pantry were removed during the tenancy. The landlord has produced a photograph showing the doors in situ in 2022. At the end of the tenancy, the landlord located the doors in an outside shed. The tenant states they removed the doors because they were faulty and kept falling off. That they advised the landlord, and that the landlord had asked for the doors to be stored in the shed. The landlord stated that they could not remember being told but could not be 100% sure.

To find the tenant liable the Tribunal must be satisfied that the damage occurred during the tenancy and that it was more than fair wear and tear. While the damage has occurred during the tenancy, based on the evidence, I am not satisfied that it is necessarily more than fair wear and tear. The claim is dismissed. Front door

The landlord states that at the end of the tenancy, they discovered that the front door was not working properly, so they asked a builder to have a look. The landlord states that the builder reported back that the lock was damaged, which had likely been caused by forced entry. The landlord states that neighbours told them the door had been kicked in during a gang raid. The tenant states that the lock was working when they vacated the property.

There is no evidence of the condition of the door or lock at the commencement of the tenancy. There are no photographs of the damaged lock. There is insufficient evidence to be satisfied that damage occurred during the tenancy, and the claim is dismissed. Walls

The landlord has produced photographs of damage to walls throughout the property taken at the end of the tenancy. The landlord is also relying on the inspection photographs taken in March 2021 and June 2022. The landlord states that the property had been redecorated prior to their purchase in 2021, but there is no other evidence to support this claim.

The tenant accepts responsibility for a hole lower down in the hallway near the front door which was caused during a dog fight.

The landlord has produced a photograph of a wall in the dining room, which they claim has been damaged by picture hooks, then roughly repaired, and painted.

The tenant stated that after a previous hearing, which had resulted in their eviction, they had been through the property applied plaster to any holes left by picture hooks, repaired pre-existing damage, and painted parts of the kitchen as a favour to the landlord. The tenant suggested that the landlord was aware of what they were doing, did not raise any objection, and appeared to appreciate their efforts. On this basis the tenant suggested that the landlord should be estopped from bringing a claim.

Unfortunately, the plaster repairs have not been finished, and the painted areas are crudely executed.

The landlord denied that they had given any permission, actual or implied, and stated that they discovered the plastering and painting for the first time when they attended the property with a methamphetamine tester, who expressed a concern about potential contamination masking.

The pre tenancy checklist records some minor damage to walls but has been prepared with the tenant in occupation. The photographs taken during the tenancy, produced to show the walls concerned in an undamaged state, show several pictures on the walls, and furniture partially obscuring the walls. Apart from the hole in the hallway, damage to the base of front and back door caused by dogs scratching, the other damage appears to be consistent with the tenant’s explanation.

Although the initial damage from picture hooks was caused by the tenant, it occurred during the previous tenancy, and was thus pre-existing at the time of this tenancy. It is therefore not damage that occurred during the tenancy. However, it is the tenant’s attempt to repair the existing damage which has caused further damage during the tenancy.

Based on the evidence, I am satisfied that the damage to the hallway and doors, caused by the tenant’s dog, the painting of the wall in the kitchen, and the plastering throughout the property is damage that occurred during the tenancy, and that it is more than fair wear and tear.

The Tribunal may make any orders that the High Court or District Court may make under any enactment or rule of law relating to contracts (see s 78(1)(h) Residential Tenancies Act 1986). This includes equitable remedies such as estoppel. A party claiming an equitable estoppel must establish that: -A belief or expectation has been created or encouraged through some action, representation, or omission to act by the other party; -The belief or expectation has been reasonably relied on to their detriment; -It would be unconscionable for the party against whom the estoppel is alleged to depart from the belief or expectation.

There is insufficient evidence on which to be satisfied that the landlord should be estopped or otherwise barred from bringing their claim.

The landlord has produced a plasterer’s invoice for $700.00, to repair damage caused by masking tape used by the tenant, redo some of the tenant’s attempted plastering, and paint invoices for $600.88. The landlord claims they painted the walls and doors themselves, which took 80 hours at $30.00 per hour.

I award the landlord $700.00 for plastering, $600.88 for paint, and 20 hours labour at $30.00 per hour, a total of $ 1,900.88. In this case I must also consider betterment and depreciation. As stated, the walls had pre-existing damage caused by picture hooks, or similar objects, some of which the landlord may have chosen to address had the tenant not attempted to do so. The landlord has also conceded that the previous redecoration was not of a particularly high standard, with areas in the kitchen where the paint could be rubbed off with a damp cloth. Considering these factors, I deduct 25% for betterment. The final award is $1,425.66 Lost rent

The landlords final claim is for three weeks of lost rent. The landlord states that their insurance covered lost rent from 07 July 2023 to 28 July 2023, during which time the property underwent methamphetamine decontamination, and they were unable to enter. Once this was completed, the landlord could attend to the damage and rubbish removal, claiming it took three weeks to complete. On the evidence, I am not satisfied that three weeks are justified. I award the landlord three days of lost rent to paint the inside of the property. Costs

As the landlord has been partly successful, I order reimbursement of the filing fee. Name suppression

The landlord does not seek name suppression. The tenant seeks name suppression.

Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.

Overall, I am of the view that the tenant has been substantially successful, either defending the claims, or the quantum of damages awarded against them, and on that basis, I order suppression of the tenant’s name.

Reasons

Claims and awards in Tenancy Tribunal application 4645510 — net $2,525.81 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rubbish removal: including disposal fees and labour	$324.00	Rubbish removal: including disposal fees and labour
Repairs: bedroom door	$550.00	Repairs: bedroom door
Repairs: walls	$1,425.66	Repairs: walls
Three days lost rent	$205.71	Three days lost rent
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,525.81
Total payable by Tenant to Landlord	$2,525.81

Both parties attended the hearing.

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

The landlord claims that the tenant failed to remove all rubbish.

My assessment is that the “pile” concerned amounts to at least two trailer loads, and on that basis, I award disposal fees of $144.00, and labour cost of 6 hours, a total of $324.00

Is the tenant responsible for damage to the premises?

The tenant accepts responsibility for a hole lower down in the hallway near the front door which was caused during a dog fight.

The landlord has produced a photograph of a wall in the dining room, which they claim has been damaged by picture hooks, then roughly repaired, and painted.

Unfortunately, the plaster repairs have not been finished, and the painted areas are crudely executed.

There is insufficient evidence on which to be satisfied that the landlord should be estopped or otherwise barred from bringing their claim.

As the landlord has been partly successful, I order reimbursement of the filing fee. Name suppression

The landlord does not seek name suppression. The tenant seeks name suppression.

Tenancy Tribunal case 4645510 — Property damage at 99 Bader Street, Bader, Hamilton 3206

At a glance

Tenancy Tribunal case 4645510 — Property damage at 99 Bader Street, Bader, Hamilton 3206

At a glance

Award balance

Claims & awards

Order

Reasons

Did the tenant comply with their obligations at the end of 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

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

Is the tenant responsible for damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions