What was Tenancy Tribunal case 4661849 about?

This case concerned a cleanliness dispute.

How much money was awarded in case 4661849?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4661849?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4661849?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9691004-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4661849 about?

This case concerned a cleanliness dispute.

How much money was awarded in case 4661849?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4661849?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4661849?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9691004-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4661849 — Cleanliness

Reasons

Ms Cawte appeared for the landlord. There was no appearance by the tenant. Earlier this morning the tenant advised the Registrar that they were unable to attend and sought an adjournment. No evidence was provided to support the request and it was declined.
The tenancy commenced on 29 April 2021 and is current. On 21 August 2023, the landlord filed a claim that the tenant was responsible for a cockroach infestation which had caused damage to the induction cook top.
In the application the landlord claims the replacement cost of the cooktop, $699.20, the cost of the technician who advised that the original cooktop was damaged beyond repair, $156.69, and $230.00 for cockroach treatment.
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”).
The landlord has also produced another invoice for $115.00, which concerns an unnecessary call out early in January 2023, when a technician was called and attended to discover that the tenant had been using the cooktop with the wrong cookware. This claim was not included in the original application, and I decline to deal with it. I add that had it been included; the Tribunal would have struggled to find the tenant liable as it does not appear to flow from any breach of the agreement or Act.
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 a certainty. 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
The cooktop was installed on 13 March 2021, shortly before the commencement of the tenancy. The stove is listed in the tenancy agreement as a chattel. Ms Cawte has produced photographs of the stove and cooktop at the commencement of the tenancy. The cooktop is an induction type and appears to be in a reasonable condition. The tenant reported an issue with the stove. On 31 March 2023, a technician visited the property. The technician has recorded in their invoice, “the unit is infested with cockroaches.” The technician goes onto state that although the cooktop could be repaired, they could not guarantee that it would not develop ongoing faults. The landlord has produced a photograph of the inside of the cooktop showing what Ms Cawte describes as signs of cockroach infestation. The recommendation was to replace the cooktop, which the landlord has done. Rather than replace like for like it appears that the landlord has installed a ceramic cook top, which I am advised is easier to operate. In April 2023, a pest controller also visited the property and treated for cockroaches.
The onus is on the landlord to establish to the required standard that the tenant is, by an act or omission, responsible for the infestation that caused the damage.
On the evidence produced I am not satisfied that the tenant is responsible for the infestation causing the damage.
The only place cockroaches were located was in the cooktop itself. The mere presence of cockroaches in the cooktop however is on its own insufficient to establish that the tenant is responsible for an infestation. Ms Cawte states that no other cockroaches were located anywhere else on the premises.
Ms Cawte states that at inspections, the property, including the kitchen, has been reasonably clean and tidy. This does not appear to be a case where the tenant is maintaining a state of uncleanliness attracting vermin and insects.
Ms Cawte states that cockroaches are attracted to food. That being the case one might expect evidence of infestation in the other areas of the kitchen where food is stored and to which cockroaches may also be attracted, but none were located. It is common knowledge that cockroaches are also attracted to sources of heat, such as that no doubt provided by the electronics of the cook top.
The pest controllers’ invoice does not describe the extent of any infestation and simply records the type of treatment applied. Ms Cawte states that the tenant has previously been warned about storing rubbish bags in the carport, although there is no evidence of this.
On the evidence, I am not satisfied that the tenant is, by an act or omission, responsible for the infestation that caused the damage. The claim is dismissed Costs
I make no order for reimbursement of the filing fee. Name suppression
Although they have not appeared, the claim has not been proven and the tenant has been wholly successful. On that basis, and as the tenancy endures, I exercise the discretion in section 95A (4) of the Act and order suppression of the tenant’s name and the address of the property. There are no grounds on which to suppress the landlord’s name.

Reasons

Ms Cawte appeared for the landlord. There was no appearance by the tenant. Earlier this morning the tenant advised the Registrar that they were unable to attend and sought an adjournment. No evidence was provided to support the request and it was declined.
The tenancy commenced on 29 April 2021 and is current. On 21 August 2023, the landlord filed a claim that the tenant was responsible for a cockroach infestation which had caused damage to the induction cook top.
In the application the landlord claims the replacement cost of the cooktop, $699.20, the cost of the technician who advised that the original cooktop was damaged beyond repair, $156.69, and $230.00 for cockroach treatment.
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”).
The landlord has also produced another invoice for $115.00, which concerns an unnecessary call out early in January 2023, when a technician was called and attended to discover that the tenant had been using the cooktop with the wrong cookware. This claim was not included in the original application, and I decline to deal with it. I add that had it been included; the Tribunal would have struggled to find the tenant liable as it does not appear to flow from any breach of the agreement or Act.
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 a certainty. 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
The cooktop was installed on 13 March 2021, shortly before the commencement of the tenancy. The stove is listed in the tenancy agreement as a chattel. Ms Cawte has produced photographs of the stove and cooktop at the commencement of the tenancy. The cooktop is an induction type and appears to be in a reasonable condition. The tenant reported an issue with the stove. On 31 March 2023, a technician visited the property. The technician has recorded in their invoice, “the unit is infested with cockroaches.” The technician goes onto state that although the cooktop could be repaired, they could not guarantee that it would not develop ongoing faults. The landlord has produced a photograph of the inside of the cooktop showing what Ms Cawte describes as signs of cockroach infestation. The recommendation was to replace the cooktop, which the landlord has done. Rather than replace like for like it appears that the landlord has installed a ceramic cook top, which I am advised is easier to operate. In April 2023, a pest controller also visited the property and treated for cockroaches.
The onus is on the landlord to establish to the required standard that the tenant is, by an act or omission, responsible for the infestation that caused the damage.
On the evidence produced I am not satisfied that the tenant is responsible for the infestation causing the damage.
The only place cockroaches were located was in the cooktop itself. The mere presence of cockroaches in the cooktop however is on its own insufficient to establish that the tenant is responsible for an infestation. Ms Cawte states that no other cockroaches were located anywhere else on the premises.
Ms Cawte states that at inspections, the property, including the kitchen, has been reasonably clean and tidy. This does not appear to be a case where the tenant is maintaining a state of uncleanliness attracting vermin and insects.
Ms Cawte states that cockroaches are attracted to food. That being the case one might expect evidence of infestation in the other areas of the kitchen where food is stored and to which cockroaches may also be attracted, but none were located. It is common knowledge that cockroaches are also attracted to sources of heat, such as that no doubt provided by the electronics of the cook top.
The pest controllers’ invoice does not describe the extent of any infestation and simply records the type of treatment applied. Ms Cawte states that the tenant has previously been warned about storing rubbish bags in the carport, although there is no evidence of this.
On the evidence, I am not satisfied that the tenant is, by an act or omission, responsible for the infestation that caused the damage. The claim is dismissed Costs
I make no order for reimbursement of the filing fee. Name suppression
Although they have not appeared, the claim has not been proven and the tenant has been wholly successful. On that basis, and as the tenancy endures, I exercise the discretion in section 95A (4) of the Act and order suppression of the tenant’s name and the address of the property. There are no grounds on which to suppress the landlord’s name.

Tenancy Tribunal case 4661849 — Cleanliness

At a glance

Tenancy Tribunal case 4661849 — Cleanliness

At a glance

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions