Published tribunal order
Tenancy Tribunal case 4667030 — Property damage at 43 Fraser Road, Titoki, RD 2, Whangarei 0172
Decided 26 Oct 2023 · Published 26 Oct 2023 · Application 4667030
- Property damage
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details. 2. 3.
Reasons
Background
- On 14 September I made an order in respect of the tenants’ application, awarding the tenants a total of $1,770.44.
- [The landlord/s] application seeks lawnmowing costs, reglazing of a cracked glass pane in a door, and compensation for firewood used by the tenants.
- The hearing took place in [Event location suppressed] on 29 September 2023. Both parties attended the hearing.
- Mr & Mrs Cockroft accepted the claim for lawnmowing costs. Cracked pane
- [The landlord/s] provided a photograph showing a cracked glass pane in the bottom panel of the back door. The pane has a cat flap in it. The crack extends from the bottom of the cat flap.
- Mr & Mrs Cockroft submitted that they were not aware of the damage.
- The crack is relatively small, and given its location it is not surprising that the tenants were not aware of it.
- However, I am satisfied that the landlord has proven that the damage occurred during this tenancy. [The landlord/s] provided photographs of the door from the beginning of the tenancy and the damage cannot be seen.
- Mr & Mrs Cockroft provided information about stress cracks in glass, and about how glass can weaken with age.
- I acknowledge that stress cracks can occur in glass. However, I note that the most common cause of spontaneous stress cracks is extreme changes in temperature, which is not a common phenomenon in Northland. I also note that the stress cracks can be caused by physical stresses, such as a door slamming hard.
- My finding is that it is more likely than not that the damage did not occur spontaneously. The damage is beyond fair wear and tear.
- The tenant then has the burden of proof to establish that the damage was caused by something other than a careless or intentional action by themselves or by someone who was at the property with their consent 1 .
- The damage was certainly not caused intentionally, but my finding it was most likely caused in circumstances that would amount to carelessness from a tenancy law perspective, such as the door being left open and unsecured, and slamming in the wind.
- Therefore, I find that the tenants are liable for this damage. 1 Section 49B(8)(b) Residential Tenancies Act 1986 (RTA)
- Unfortunately the cost of re-glazing this pane is very high, because it is double glazed and there is a cat flap in the pane. However, the landlord is entitled to the actual and proven cost of re-glazing, which I accept is $790.00 plus GST per a quote from [Glazing company]. Firewood
- The tenants were permitted to use firewood located in the farm shed, on the understanding that they would replace what they used.
- It is not disputed that the tenants did use firewood and that they did not replace it before the end of the tenancy.
- The dispute is about the amount of firewood that the tenants used.
- Mr & Mrs Cockroft submitted that they used about 3m3.
- [The landlord/s] claim for compensation is based on 8m3.
- In support of his estimate, [The landlord/s] provided: a. General information about the ‘average’ amount of firewood a household may use in a winter season. b. A statement from [Mowing contractor]. [Mowing contractor] mowed the lawns at the property. [Mowing contractor] states: I had seen a large pile of firewood more than I use each year. I use 10 cubes of firewood each year. c. A signed statement from Mrs Cockroft’s father, promising (to [The landlord/s]) to replace 8m3 of firewood.
- I acknowledge that the general information about firewood consumption is not irrelevant, although this is obviously a very inexact science because of the number of variables that come to bear. Mr & Mrs Cockcroft challenged [Mowing contractor]’s statement on the grounds that [Mowing contractor] is [The landlord/s] friend, and they submitted that the agreement is nothing to do with them.
- The evidence provided by [The landlord/s] is sufficient to show that Mr & Mrs Cockroft’s estimate of their firewood use during the one-year tenancy is probably a significant under-estimate. However, there is no means to accurately calculate the amount of firewood that they used and, given that the landlord has the burden of proof, it is appropriate to err on the side of a conservative assessment.
- Balancing those considerations, I will award compensation on the basis of 6m3 of firewood consumed.
- [The landlord/s] provided a quote from [Firewood supplier] in Whangarei, who charge $149.90 per m3 for firewood.
- The firewood in [The landlord/s] shed almost certainly came from his farm and not from a retailer such as [Firewood supplier]. However, I acknowledge that:
- [The landlord/s] is entitled to compensation for his time and machinery. a. Firewood may not always be available on the farm at any given time in substantial enough quantities. b. The tenants had the opportunity to replace the firewood at a lesser cost by meeting the terms of their agreement with the landlord.
- I will award compensation on the basis of $100 per m3. Filing fee, name suppression, bond
- The landlord has been successful in this application. I will award the landlord the filing fee of $20.44 2 . The landlord’s request for name suppression is granted 3 .
- Taking into account the previous order there is a net award to the tenants of $161.50.
- The bond will be released to the tenants.