What was Tenancy Tribunal case 4691490 about?

The tribunal order states: [The tenant/s] must pay Summit Property Management Limited As Agent For

How much money was awarded in case 4691490?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4691490?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4691490?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9794764-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4691490 about?

The tribunal order states: [The tenant/s] must pay Summit Property Management Limited As Agent For

How much money was awarded in case 4691490?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4691490?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4691490?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9794764-Tribunal_Order_Redacted.pdf.

135 Tipahi Street, Nelson South, Nelson 7010 Tenancy Tribunal Case 4691490 — Property damage

Order

[The tenant/s] must pay Summit Property Management Limited As Agent For Annabelle Reeves & Nicholas Zeeman $1,321.00 immediately, being compensation for loss of contents.

Reasons

Both parties attended the hearing.
The landlord has applied for compensation, and reimbursement of the filing fee following the end of the tenancy.
The tenancy ended abruptly after a fire destroyed the premises.
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.”
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.

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

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) Residential Tenancies Act 1986 (RTA).
The tenant did not remove a portable spa pool and four wooden pallets. A commercial contractor was engaged to remove the spa pool and pallets at a cost of $241.50. The landlord sought this amount as compensation.
Section 49 RTA requires mitigation of damage or loss. Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
This section has application here. The tenant (and public) had limited access to the premises after the fire. Looking at the damage evidenced in the photos, some constraint on access for safety and property protection reasons appears reasonable. The gate access to premises were secured by a lock but that appears to be a prudent step by the owners given the state of the premises as well as possible entry by others without permission. For reasons that remain unclear, the tenant was not advised she could access the outdoor area where the disused portable spa pool and four wooden pallets were stored. The house was unoccupied and will be demolished so timeliness was not critical. Given her involvement at the time, and willingness to remove other items as permitted, I find the use of a commercial contractor to remove the spa pool and pallets at a cost of $241.50 was needlessly incurred.
If the landlord had advised the tenant that the items required removal within a reasonable timeframe, and the items remained, I would consider the claim differently but having considered the respective submissions and evidence I dismiss the claim for the removal of the items as the landlord, in the circumstances, failed to mitigate the loss appropriately.

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.
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.
Section 45(2B) RTA (2B) requires a landlord may at any time, and must within a reasonable time after receiving a request from the tenant for a copy of the insurance policy, provide to the tenant under a tenancy agreement a copy of each insurance policy that is relevant to the tenant’s liability for destruction of, or damage to, the premises.
The tenancy agreement contained the following sections:
The above sections have bearing as the Insurance section records House Cover, the provider, and the excess amount. It also provides for the tenant to request a copy. The Chattels section states no chattels are provided.
The tenant did not have any insurance of her own. She wryly acknowledged she does now. No request for the landlord insurance policy details were requested by the tenant during the tenancy.
The landlord house policy did not include contents (see below). This was an optional extra that was not taken up by the landlord. The policy name seems apt, being “House cover”.
The premises was destroyed by the careless actions of the tenant. It is not disputed the fire was caused by wood burner ashes that had not extinguished. They were placed in a plastic bucket that later ignited and caused significant fire damage to the house. The landlord had house insurance. On that basis, it was mutually agreed the excess of $700.00 should be paid by the tenant and that would resolve the matter.
The $700.00 excess, and some rent in credit, was resolved by a split return of the bond. I consider both parties considered that resolved the matter regarding house damage.
Subsequently, the insurer declined cover for the curtains and light shades, deeming these contents and therefore excluded.
In this application, the landlord sought further compensation of $2,333.75 for curtain and fittings replacement, and $969.96 for light shade replacement. As the house is destroyed, the costs were established via quotes assuming a like- for-like replacement, with photos showing a number of them in place before the fire. The reality is that any new build will have a different configuration.
The landlord accepted the actual loss and compensation costs are difficult to establish and it had earlier proposed a settlement with the tenant on the basis of the bond less the $700.00 already paid – that being $1,900.00. That was not accepted and the tenant believed she had no further liability, relying in part on the insurance cover and the “no chattels” clause in the tenancy agreement.
Chattels (alternately called contents or fittings) may be considered anything that is not a fixture or part of the land. How they are treated can differ. It may be that some chattels are considered fixed, such as an oven, heat pump, built-in dish washer or such. Other chattels, like a washing machine, television, or table, are removable. From an insurance perspective, some chattels may be covered under a house policy while others are covered by a contents policy. The insurance policy here was a special landlord policy for house cover. Many homeowners will carry two insurance policies, one for the house and one for the contents. The case for both in a landlord policy where the premises are unfurnished is not so strong.
Disputes over what is a fixture or chattel can arise. In a residential property purchase the Sale and Purchase Agreement will usually be very specific on what is included or not. A tenancy situation is different. It is difficult to imagine a residential tenancy that would include no chattels and still meet the statutory requirements.
Consistent with the Tribunal’s decision in Tomlinson v Mittal, Auckland, 08/5574/AK, 4 February 2009, it can be an implied term of every tenancy agreement that chattels such as curtains are provided for windows, particularly in bedrooms for privacy and comfort for sleeping. I consider, if required, a similar implied term might be made regarding light fittings too.
The landlord relies on the ingoing condition report as evidential support of any chattels. Put another way, if such curtains and light fittings were removed by a tenant at the end of a tenancy, citing the “no chattels” statement as justification, but evidence supports these being in-situ at the commencement of the tenancy, I struggle to see that the tenant removal could be upheld. Certainly, a failure to detail easily removable chattels (furniture, cutlery, lawnmower etc) on a tenancy agreement may hinder any subsequent landlord claim but I do not consider curtains and light fittings to be in the same category.

Can further claims be made?

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 section 78(1)(h) RTA). This includes equitable or contractual remedies such as estoppel.
An argument of contractual estoppel here would need to establish that the tenant payment via the bond concluded the contract (the signed tenancy agreement) ended liability. I do not consider the tenant has established grounds for contractual estoppel to apply here but I also considered equitable estoppel.
A party claiming an equitable estoppel must establish that: a. A belief or expectation has been created or encouraged through some action, representation, or omission to act by the other party; b. The belief or expectation has been reasonably relied on to their detriment; and c. It would be unconscionable for the party against whom the estoppel is alleged to depart from the belief or expectation.
It might be argued the return of the bond created a belief for the tenant such that it prevents any further landlord claim.
The underlying principle of equitable estoppel is to prevent the exercise of strict legal rights in circumstances where the exercise of them would be unconscionable. This principle is entirely consistent with the jurisdiction of the Tenancy Tribunal (Stella & Carey v Bay of Islands Realty Limited & Kirkman [2016] NZTT Kaikohe 4051975 & 4053657).
When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
I do not consider the prompt release of the bond as occurred in this instance can be considered the effective end of any tenant liability. I differentiate here from situations such as where the parties have mutually agreed, such as at an end of tenancy inspection, that the premises are reasonably clean and tidy and the bond is released. Such an agreement is based on a visual inspection and assessment and would likely be considered binding, even if later the owner may have a different view than the agent, or the agent had second thoughts.
However, it is not unusual for a landlord to be unaware of a pending loss at the time of releasing the bond. One example is methamphetamine contamination that is effectively invisible and only detected by a testing regime that can take some time to report.
The subsequent loss of the curtains and light shades cover was unexpected as both parties considered the one insurance claim would cover all losses from the fire. The bond was released on that basis. The cause of the losses was a single event, the fire, but it is considered multiple losses can follow such an event; some losses may be insured, others not. This proved to be the case here but to consider the landlord estopped due to the release of the bond would be tacit approval for a landlord to demand the bond be retained at the Bond Centre for what might be a considerable duration to ensure no possible claim against it might arise, adversely impacting the tenant as they seek to have the prompt return and use the bond for their next rental. In this case, it took some two months from the fire before the insurer advised the owners of the exclusions applying.
As uninsured damage, the damage to the curtains and light fittings falls under section 49B(3)(b) RTA. Therefore, the tenant's liability is limited to four weeks' rent, that being $2600.00 in this instance.
For the above reasons I find the compensation for the subsequent loss to the owners may be sought, despite the earlier resolution of the house insurance excess under 49B(3)(a).

What compensation is appropriate?

The use of quotes to establish a loss and derive a compensation amount is not ideal but in these circumstances I can not see a better alternative. The photos of the quoted items and the lost items seem to be reasonably aligned.
I need to 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. I heard from the landlord that the items had a variable date range, some curtains were homemade, other purchased.
In the New Zealand case of J & B Calwell Ltd v Logan 1 , Fisher J considered the situation where a plaintiff may be undercompensated once depreciation was applied, and referred to the Canadian case of James Street Hardware and Furniture Co Ltd 2 , and stated: The logical middle ground is to make a deduction for betterment but only after allowance for the plaintiff for any disadvantages associated with the involuntary nature of any additional investment.
The yet to be incurred expense or effort to the owners in replacing the curtains and light shades in any replacement home is involuntary and only required due to the loss of the existing equivalents due to the fire.
I have carefully considered the submissions and evidence. I am mindful of the difficult circumstances of how this tenancy ended and the impacts on both the tenant and the owners. The actual loss is difficult to quantify at this time.
The landlord sought $3303.71 compensation based on the quotes provided. These include material and labour costs. A 40% weighting to reflect the uncertain loss (actual and monetary), as well as the age and condition of the items pre fire equates to $1,321.00. I have also allowed in adopting 40% for some economies of cost in any future refitting during what will be a more significant rebuild project that is insurance funded. I have determined this is 1 J & B Calwell Ltd v Logan [1999] 2 NZLR 99 2 James Street Hardware and Furniture Co Ltd 62 OR (2d) 385 (Ont CA) appropriate compensation for the loss of curtains and light shades and this amount is ordered. Application filing fee
As the landlord has not been wholly successful, I make no order regarding the application filing fee. 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.
Further, 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 tenant’s application for suppression made at the hearing. The application was supported by the landlord. I suspect there is some public interest given the house was destroyed by fire but given the actual dispute heard, I consider naming the tenant in this order would have a disproportionate impact on her as she remains a tenant at this time. The linkage of her name with the destruction of a premises through a fire could have a disproportionate impact on her. Therefore, I order suppression of her name.

Tenancy Tribunal case 4691490 — Property damage at 135 Tipahi Street, Nelson South, Nelson 7010

At a glance

Tenancy Tribunal case 4691490 — Property damage at 135 Tipahi Street, Nelson South, Nelson 7010

At a glance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Can further claims be made?

What compensation is appropriate?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Can further claims be made?

What compensation is appropriate?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions