Published tribunal order
Tenancy Tribunal case 4663070 — Property damage at 317A Tancred Street, Hampstead, Ashburton 7700
Decided 7 Nov 2023 · Published 7 Nov 2023 · Application 4663070
- Property damage
Party names are redacted in the official published order.
Order
- [The tenant/s] to pay Pgg Wrightson Real Estate Limited As Agent For Maranzi Limited $1,520.00 from the bond, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,520.00 ([Bond number suppressed]) to Pgg Wrightson Real Estate Limited As Agent For Maranzi Limited immediately.
Reasons
- Both parties attended the hearing. Mses Susan Prendergast, Robyn Leggett, and Linda Fogarty represented the landlord. The tenant was supported by her parents. One was granted a right of audience.
- The landlord had applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenant had applied for refund of the bond and compensation. The tenant had varied her application via further submitted document. The landlord acknowledged receipt and confirmed they were prepared to respond.
- For the benefit of both parties, a party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
- The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
- After the hearing, some confirmation evidence from the landlord was provided for in an adjourning order, being: a. Confirmation via invoice or other details that the premises carpet was fully replaced in 2017. The invoice should clarify the type and colour of carpet. b. All invoices incurred in repairing any damage to the premises, or as provided to the insurer as part of the insurance settlement, including the bath. c. Confirmation of the final settlement basis costings, total and per claim. d. Written evidence from the landlord pertaining to the owner’s instruction and reasons to terminate the tenancy as later served in the notice to terminate.
- Both parties made further submissions and/or attempted to provide further evidence. This was not expected nor provided for in the adjourning order. These have not been considered. I note that no confirmation of the final settlement details were provided.
- In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Landlord application
- The landlord sought the excess costs for 18 insurance excesses and reimbursement for a blocked drain cost.
- At the commencement of the hearing the landlord confirmed the claims sought but acknowledged the damaged benchtop was pre-existing and withdrew that claim.
- There were references in some submissions to further landlord costs or effort. Such cost or effort may have been incurred but they did not form as specific claims and no additional orders are made.
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.
- The tenancy agreement records the insurance policy and excess. The excess at the time of the tenancy forming was confirmed in the tenancy agreement as $400.00. I have no evidence of any advice to the tenant that the insurance excess was ever increased at some stage to $650.00. A previous Tribunal order (Tenant v Philpot and Philpot [2021] NZTT 4295509, 4296039) found the tenant should be able to rely on the excess amount as stated in the tenancy agreement. That same approach is considered appropriate in this instance. Without any subsequent written advice of any increase in the insurance excess amount it is considered any application of the excess in claims such as here should be applied at the rate as notified and mutually accepted at the tenancy agreement. Where the landlord has been successful in any claim that seeks the excess this has been awarded at $400.00.
- 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.
- “Fair wear” is deterioration caused by the reasonable use of the premises. “Fair tear” is deterioration caused by the ordinary operation of the forces of nature. Importantly, intentional or negligent damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.
- The insurer accepted the claims as detailed below in a written response. It indicated a final adjustment may apply if any cost was not over excess but no final statement was made available to the Tribunal to ascertain the final settlement basis. A single excess will apply per event, with another excess (total) for the water damage in the laundry. Please see below. Each excess amount is $650 Living / kitchen: Replace carpet - 1 excess* Plaster repair to walls including decorating - 1 excess* Replace benchtop - 1 excess Laundry: Replace door frame & paint - 1 excess Bedroom # 1: Replace carpet - 1 excess Plaster repair to walls including decorating - 1 excess Bedroom # 2: Replace carpet - 1 excess Plaster repair to walls including decorating - 1 excess Bedroom #3: Replace carpet - 1 excess* Plaster repair to walls including decorating - 1 excess Bathroom: Replace vinyl - 1 excess Plaster repair to walls including decorating - 1 excess* Replace bath - 1 excess Replace door & paint - 1 excess Replace mixer - 1 excess Hallway: Replace carpet - 1 excess Plaster repair to walls including decorating - 1 excess If for example a cost does not come over excess then this gets removed from the claim settlement. Hope this makes sense to you. * Claims in bold are claims accepted by the tenant. The excess is awarded.
- The tenant accepted liability for the lounge wall and carpet and third bedroom carpet. She also accepted the damage to the towel rail in the bathroom. All other claims were disputed. Each disputed claim and the supporting evidence was reviewed.
- An additional claim for $269.39 for a blocked drain was made. This cost was actually incurred in September 2022 and paid by the landlord at that time. No reimbursement was sought at that time. There is no evidence of tenant liability. Her father had attempted to unblock the pipe and believed roots were the cause. It present this invoice now, without any prior communication regarding any claimed liability, nor supporting evidence, lacks credibility and the claim is dismissed.
- One challenge for the landlord regarding the large number of damage claims was the entry by the owner at the end of the tenancy, but prior to the final inspection with the property manager, planned for the following Monday. It appears he commenced some preparation work for the intended repainting that weekend. This was evidenced by a series of plastered areas. Unfortunately, it is difficult to ascertain from such evidence that the base problem was tenant damage or wear and tear. There were minimal “before” photos that could have assisted the evaluation. I note the owner believes “The filler photos can also be used as evidence that there were dents / thumb tack holes in the walls of every room.” 1 I struggled to reach such a conclusion.
- There are also prior emails and conversations between the property manager and owner regarding the condition of the premises and remedial action required. These are considered later in the Tenant application section of this order but I note it appears professional carpet cleaning was arranged by the tenant before the end of the tenancy. Earlier impressions regarding the condition of the carpet may have not reflect the final state. I rely on the evidence from the end of the tenancy as provided by the landlord or tenant.
- Apart from those claims mutually agreed and awarded, I have considered the submissions and evidence as presented and discussed during the hearing.
- I have determined it as more likely than not that the bath was accidentally damaged during the tenancy and accept that it has been replaced (the tenant expressed concern the bath had not been, based on the next listing of the premises for rent). Therefore, the excess amount of $400.00 is awarded to the landlord.
- The landlord withdrew the hallway claims at the hearing due to a lack of evidence.
- The various wall and carpet damage are not proven, beyond those awarded. The damage is not proven as more than fair wear and tear, or to an extent that full replacement of the carpet or repainting was necessary rather than desirable. Any remaining stains in bedrooms 1 and 2 are not clearly evidenced as occurring during the tenancy and being such that full carpet replacement is required.
- The lino damage claimed in the bathroom is not proven as tenant liability.
- The claims for the bathroom mixer replacement and door repair are dismissed. Both are considered as fair wear and tear from intended use.
- As already recorded, the claim for a damaged benchtop was withdrawn as it predated this tenancy (but was never repaired during this tenancy).
- The amounts ordered are proved. 1 Document: Summary From Owner Damage & Cleaning
- I have considered possible betterment and depreciation. The carpet age was disputed but I have accepted 2017 as more than likely the year of installation. 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. Given the limited success of the landlord, and likely costs in such circumstances, I have not applied depreciation, concluding the excess in each instance was the lower of the two. Tenant application
- The tenant initially sought the return of her bond and compensation of $340.00 for failures to maintain. Further claims were made after the application relating to the termination. A claim regarding quiet enjoyment due to neighbour behaviour was added, as was one regarding the return of the bond. Retaliatory notice was claimed. Failure to maintain
- It is well settled that, the landlord’s obligation under s45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
- The tenants claim that the landlord failed to remedy several repair issues within a reasonable timeframe. I consider each issue in turn.
- Entry issues were raised in the application by the tenant but there is no evidence to support the claims of pest infestations or cat nuisance. I note the cleaning invoice produced by the landlord for work prior to this tenancy. Other tenant claims from this time appear more akin to a defence to the landlord claims; being that some damage was pre-existing. These were heard and considered as part of the tenant response but I find no specific grounds established to determine there was any landlord failure at the commencement that should attract any compensation order.
- The tenant claimed compensation for failures of the landlord to fix bedroom lighting and bathroom extractor/heat lamp. These failures were the basis of the $340.00 compensation sought. I heard from both parties and while the tenant submitted she had verbally advised the landlord earlier of the problem, the evidence supports the landlord contention that when appropriately advised they responded within a reasonable timeframe. This was supported by appropriate contractor invoices.
- While I heard of verbal advice to the landlord regarding maintenance, I have no evidence of that as being more than likely to have occurred and I prefer the available evidence that indicates a reasonable responsiveness. That being so, I do not find the landlord failed to meet its obligations under s 45 and no compensation is awarded here. Quiet enjoyment
- The tenant experienced problems with the behaviour of a neighbour (not one with the same landlord as here). I accept the experiences as recounted, but I do not find the landlord responsible. The advice at the time to call police was appropriate and I make no order. Retaliatory notice
- The tenant raised retaliatory notice. The tenancy ended via a notice to termination served on 11 May 2023. The grounds for termination cited were per s 51(2)(f) RTA, being “extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner”.
- Section 54 states any application regarding retaliatory notice must be made within 28 working days of receipt of the notice. The tenant application was lodged on 30 August 2023. At that time the tenant did not raise retaliatory notice as a claim but regardless, the lapsed time before any raising of this is such that no consideration of retaliatory notice is made. Termination
- The genesis of the termination notice appears to be owner concern regarding the condition of the premises. The property manager had raised this with the owner.
- In a letter to the property manager dated 11 May 2023, the owner wrote:
- This letter was followed shortly afterwards by the formal notice to terminate. No copy of the notice to terminate was provided to the Tribunal but the key dates and terms were mutually agreed by the parties.
- Previously, the landlord emailed the tenant in December 2022, after a property visit. In that email she brings the following issues to the tenant’s attention: a. Strong smell of urine – requested airing and removal of anything causing the smell. b. Dirty lounge carpet – please arrange to have it cleaned. c. Two plasters stuck to the bath – please remove
- The plasters were covering the bath chip that the tenant claimed at the hearing the chip caused skin damage to her children when using the bath, hence the plaster.
- Given the “extensive” repairs intended appear to only pertain to tenant damage, I queried the property manager as to why the more obvious application for termination via a provision such as s 55(1)(b) was not made (I did not see any notice to remedy that might have brought s 56 into play). Such an application would have enabled an appropriate determination that may have been more instructive for these subsequent compensation claims. Given the lack of success of the landlord’s application here, an outcome of termination could not be assumed.
- The property manager responded that this approach to terminate was seen as a kinder way to end the tenancy. That may have been the motivation, but it is concerning given the lack of compelling evidence to support the stated grounds. The owner appears to rely on a phone description in mid 2023 of damage to conclude “extensive wall repairs and repainting” as well as full recarpeting will be necessary. However, the December email from the landlord to the tenant suggests any noticeable issues were more localised.
- The tenant claims there was no grounds to terminate the tenancy as stated in the notice to terminate (see s 66AA RTA). I have already queried the approach adopted if the extent of premises damage was as bad as claimed. The termination has had an impact on the tenant who had been experiencing some personal challenges and remains living with family, finding a new tenancy difficult to obtain.
- I am also mindful of the proven damage, and cost and effort for the landlord and owner (without the final settlement details I am unable to determine how much he might be out of pocket). While no exemplary damages were sought, I consider the grounds for some general compensation due to the impact on the tenant exist.
- Section 85 RTA requires that the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes such as these.
- Having considered the overall tenancy and the genesis, and impact, of the notice and subsequent termination, I have determined a compensation sum of $480.00 appropriate as compensation to the tenant for the impact of what is considered a termination without reasonable cause. There is an element of rounding to recognise the bond amount. This sum is lower than what might have been determined if the tenant was totally faultless. Application filing fee
- Neither party has enjoyed sufficient success to justify any order of the filing application fee and each party is to carry its own cost of filing. Suppression
- Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
- The tenant requested name suppression.
- Neither party could be considered to have been, at a minimum, substantially successful. Therefore, there are no automatic grounds for name suppression.
- The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
- I have considered the exercise of such initiative given the tenant’s request and reasons for requesting suppression. I have decided to order suppression of the tenant’s name. This is not done lightly as there was clearly tenant damage caused during the tenancy. I have balanced this with the prior acceptance by the tenant of the claims that have been awarded and her personal circumstances later in the tenancy. Most of the landlord’s claims have not been proven and I do not consider the premises required the extensive repairs as planned or conducted solely due to any tenant failing. I consider it possible resolution of the proven claims without recourse to the Tribunal was a real possibility given the approach of the tenant and her family supporters. Her resistance to accepting all claims as made by the landlord at the end of the tenancy has been proven justified.