What was Tenancy Tribunal case 4706689 about?

The tribunal order states: Alexander Hoffman and Brigitte Fink to pay Helena Barrow As Trustee For The

How much money was awarded in case 4706689?

Chairs: $50.00 awarded to landlord; Lino: $200.00 awarded to landlord; Replace Furnishings: Lampshade: $31.38 awarded to landlord; Water Rates: $11.47 awarded to landlord

What type of tenancy dispute was case 4706689?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4706689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10401326-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4706689 about?

The tribunal order states: Alexander Hoffman and Brigitte Fink to pay Helena Barrow As Trustee For The

How much money was awarded in case 4706689?

Chairs: $50.00 awarded to landlord; Lino: $200.00 awarded to landlord; Replace Furnishings: Lampshade: $31.38 awarded to landlord; Water Rates: $11.47 awarded to landlord

What type of tenancy dispute was case 4706689?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4706689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10401326-Tribunal_Order.pdf.

Unit/Flat 2, 22 Wastney Terrace, Marybank, Nelson 7010 Tenancy Tribunal Case 4706689 — Property damage

Claims and awards in Tenancy Tribunal application 4706689 — net $292.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Replace furnishings: Lampshade	$31.38	Replace furnishings: Lampshade
Water rates	$11.47	Water rates
Chairs	$50.00	Chairs
Repairs: Lino	$200.00	Repairs: Lino
Net award	$292.85
Bond	$1,560.00
Total payable by Tenant to Landlord	$292.85

Claims and awards in Tenancy Tribunal application 4706689 — net $292.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Replace furnishings: Lampshade	$31.38	Replace furnishings: Lampshade
Water rates	$11.47	Water rates
Chairs	$50.00	Chairs
Repairs: Lino	$200.00	Repairs: Lino
Net award	$292.85
Bond	$1,560.00
Total payable by Tenant to Landlord	$292.85

Order

Alexander Hoffman and Brigitte Fink to pay Helena Barrow As Trustee For The Fitzgerald Investment Trust $292.85 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,560.00 (5991761-001) immediately apportioned as follows: Helena Barrow As Trustee For The Fitzgerald Investment Trust: $292.85 Alexander Hoffman and Brigitte Fink: $1,267.15

Reasons

Both parties attended the hearing. This was a continuation hearing after a prior adjournment to allow further hearing time.
The landlord has applied for compensation, and refund of the bond, following the end of the tenancy.
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.
This was a very long tenancy, commencing in 2015.

How much is owed for water rates?

The landlord provided water rates invoices which prove the amount owing at the end of the tenancy was $11.47, based on as manual read of the water meter.
The final water rates was calculated by the landlord to be $11.47. This was established by read of the meter at the end of the tenancy and compared to the previous formal invoice. The process was sound and the amount claimed is consistent with the demonstrated usage and cost. This is awarded.

Is the tenant responsible for any costs or 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 careless, and occurs after 27 August 2019, section 49B RTA 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) 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.
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 careless damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation. The landlord claims Ranch slider
The landlord claimed for broken glass in the ranch slider ($565.80) and the cost of affixing the door handle – it had broken during the tenancy ($67.78). The tenants had purchased a replacement handle at their cost but it had not been installed. The photographic evidence is inconclusive to establish tenant liability for the crack in the glass. It does not appear more than likely to have been caused by a direct strike and I have some consideration of the expected use, age and related handle failure. I do not consider the damage proven to more than fair tear and I decline both claims. Plumbing
The landlord sought compensation for the insurance excess ($550.00) for the remediation after an internal sewerage overflow, and the subsequent (and related) a plumbing invoice (2,505.85). The landlord considers the tenants liable for these two costs given wipes were found in the blocked drain. It appears the actual sewerage came from adjacent unit on higher ground after a blockage in the sewer pipe. While the landlord correctly identifies wipes in the plumber’s report, she has put less weight on the confirmed tree roots that required removal. She also appears to believe that the tenants understated the issue intentionally, relaying only that there was water present. The greater urgency required for a sewer overflow was delayed, with unfortunate consequences. However, I am not convinced this was intentional and it is not inconceivable that the initial overflow appeared more akin to water, with solid waste following later from the unit above (at the time the tenants had already moved out so the waste volume evidenced would appear to be from an occupied premises.
Of the claims, this was the most distressing for the landlords given the internal waste, entering the premises through the toilet due to a downstream blockage. By the time of the event the tenants had already vacated and they were not impacted by the problem.
However, while the landlord seems to find nefarious intent of the tenants in the blockage, I consider the roots were the underlying issue. A possible increase in the use of wipes during the exit cleaning period would have exacerbated the situation.
I do not find the landlord has established tenant liability for the costs and the claims are dismissed. Chattels
Two new matching lampshades were installed at the beginning of the tenancy. At some stage during the tenancy one of the lampshades was damaged on the tenants effected a repair. They considered it a minor issue and not mention it to landlord. When discovered at the end of the tenancy, the landlord replaced both lampshades at a cost of $62.75. Balancing the depreciated value, likely cause, the failure of the tenants to inform the landlord I consider it appropriate for the cost to shared equally between the two. I therefore award $31.38 towards the replacement cost.
The landlord provided four new chairs at the commencement of the tenancy. At the end of the tenancy two of those chairs had substantial deterioration of the covering. The landlord claimed the deterioration could not be accounted for as normal wear. She considered the tenants liable, considering the deterioration through some improper use of the chairs. The tenants responded with Internet sourced information regarding accelerated degradation of such coverings. I rely on the photos provided and not the expanded description of the damage recounted by the landlord. The deterioration appears to be in areas of the covered chairs that would typically have contact with the seated person. It is disappointing that the tenants did not advise the landlord of the damage as it appeared, rather waiting until the end of the tenancy. Earlier advice may have enabled the landlord to seek consumer protection if the chair covers were found to be not fit for purpose as tenant research indicated. Equally, given the deterioration evident it is curious the landlord did not observe the same during inspections.
Given the tenants proactively switched chairs as damage appeared and failed to advise the landlord, I consider some culpability sits with them and I award $50.00 as part contribution to the replacement. This amount recognises the age of the chairs at the end of the tenancy. Electricity reconnection
The landlord incurred an electricity reconnection fee ($75.00). The tenants had moved out of the premises before the formal end date and transferred their electricity account to the new premises. As the tenancy continued until 21 August 2023 the landlord did not arrange for an account with their preferred electricity retailer until near the end of the tenancy. It is uncertain what triggered the disconnect. The period between the tenants transfer and the actual end of the tenancy may have caused a proactive disconnect. I have no reason to disbelieve the tenants transfer with their retailer took place as recounted. I do not find it proven that the tenants requested an actual disconnection rather than transfer and dismiss the claim for reconnection fee. Kitchen floor
The premises were built in the late 1970s/early 1980s. While the landlord has enhanced aspects of the premises, the kitchen lino flooring appears to be original. The ingoing condition report notes general wear of the floor but no specific problems.
The landlord provided photos of the lino at the end of the tenancy. These photos show some areas of damage to the lino consistent with local impact from some object. These may be considered wear and tear. More concerningly (and obvious) was a large brown rusty stain. It was very apparent in the photographs. The tenant submitted that the staining was caused unintentionally as they had placed a rubber mat over the lino. They stated it remained there for the nine years of the tenancy with them unaware that such a mat could cause reactive damage to the lino. I accept that it more likely than not that the lino was badly stained by the tenant placement of the mat. I struggle to accept that it remained in situ for nine years, given a reasonable expectation that it may be lifted for cleaning purposes. The landlord advised that the lino is still installed and they are yet to decide on whether to replace it or not. Given its age would be some 40 years, even if replaced with a demonstrable cost, some significant depreciation to reflect the economic life would be appropriate. Some nine months after the tenancy ended the landlord has incurred no loss and it is not certain what will be decided from here.
Given the tenants accounting for the cause, revisiting by the landlord of potential insurance cover for the damage would appear reasonable. That is for the landlords to pursue as they see fit.
While the lino was beyond its economic life, I consider, but for the bad staining, that the landlord may have benefited from it for several more years. Given the lack of a loss at this time I have considered the cause and the accelerated depreciation in determining the tenants should compensate the landlord $200.00 towards the eventual replacement, or towards the insurance excess if a successful claim is made.
The landlord withdrew the claim for kitchen window reglazing.
I have taken into account 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, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.

Tenancy Tribunal case 4706689 — Property damage at Unit/Flat 2, 22 Wastney Terrace, Marybank, Nelson 7010

At a glance

Tenancy Tribunal case 4706689 — Property damage at Unit/Flat 2, 22 Wastney Terrace, Marybank, Nelson 7010

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for water rates?

Is the tenant responsible for any costs or damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for water rates?

Is the tenant responsible for any costs or damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions