Published tribunal order
Tenancy Tribunal case 4712569 — Rent arrears at Unit/Flat 3, 29 Monterey Avenue, Otahuhu, Auckland 1062
Decided 15 Feb 2024 · Published 15 Feb 2024 · Application 4712569
Landlord favoured
- Rent arrears
Order
- Akanesi Aho and Niu Fata Aho owe Barfoot & Thompson Limited $2,066.06 (“the debt”) made up as shown in the table below.
- Akanesi Aho and Niu Fata Aho must pay rent and the debt as follows: a. By a payment of $650.00 for usual weekly rent on 17/02/24; b. By weekly payments of $700.00, being $650.00 for rent and $50.00 for the debt every Saturday, with the first payment on 24/02/2024 and continuing until the debt is repaid in full.
- Payments will be allocated in the following order: rent, rent arrears, repainting costs and the filing fee.
Reasons
- Both parties attended the hearing. The tenants were represented by Akanesi Aho, supported by her brother Osaiasi Tukumoeatu.
- The landlord has applied for rent arrears, compensation and reimbursement of the filing fee.
How much is owed for ren?
- The landlord provided rent records which prove that two weeks’ rent are owing as at the end of rent week 10/2/24 to 13/2/24. The tenant confirms the amount owing.
Is the tenant responsible for the damage to the premises?
- The premises are in a block containing 3 x two-bedroom units each with a 2 bedroom slip out attached. Tenancy began as a rental of unit 3 and its associated two-bedroom sleep out. The tenants’ brother Mr Tukumoeatu then moved into the sleep out attached to unit 2 in September 2022.
- There appears to be no documented variation of the original tenancy agreement to record that change. Both parties however agree that Mr Tukumoeatu's occupation of that sleep was as an extension of this tenancy arrangement not a new and separate one. That is reflected in the rent records which show an increase of the rent payable by the tenants, to take account of the additional premises, during the period Mr Tukumoeatu was occupying that sleep out. The tenants are accordingly liable for that part of the extended premises.
- Mr Tukumoeatu moved out of the sleep out in April 2023. The landlord claims compensation for cleaning costs, carpet replacement costs and interior repainting that it says were required after Mr Tukumoeatu vacated.
- The only pre tenancy photographs from the sleepout date from September 2018. Mr Tukumoeatu’s evidence is that those photographs do not represent the condition of the premises when he moved in four years later. In the absence of that evidence, I do not find it proved that the need for cleaning of the premises or replacement of the carpet arose during the tenancy in any event, the new tenancy has begun without the carpet having been replaced so no loss has been incurred.
- At the end of his occupation of the sleepout, to make sure that the premises were in a nice condition, Mr Tukumoeatu repainted parts of the interior that he says were affected by fly spots and mould, which he says the landlord should have attended to before then – although he acknowledges that he did not raise that with the landlord during the regular inspections. The photographs show that while the work was done with the very best of intentions, the paint used was not an ideal colour match with the existing paint and the end result was not satisfactory. I accept the landlord’s position, as proved by the photographic evidence, that the landlord really did need to have the interior repainted.
- Mr Tukumoeatu says that he should have been given the opportunity to do the remedial work himself or get someone else do it, rather than his sister simply being presented with an invoice to pay. Section 49 RTA says: “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.”
- In the circumstances where there had already been an attempt at painting the interior of the premises and new tenants head moved in, I do find it was reasonable for the landlord to take the step of engaging tradesmen to get the painting done.
- In awarding compensation, I take into account the cost to the landlord, as proved by the painter’s invoice the landlord has paid. I also take into account that the existing paint work dated from 2017. Allowing for the improvement value for the landlord given an average 8 year lifetime, I award 25% of the landlord’s repaint cost as compensation.
- The parties have agreed the above arrangement for a payment of the debt.
- Because Barfoot & Thompson Limited has substantially succeeded with the claim I have reimbursed the filing fee.