What was the outcome of Tenancy Tribunal case 4714430?

The tribunal order states: Danelle Maree Stella and Alexandra Steven Lee to pay Emma Frances

How much money was awarded in case 4714430?

36 Weeks: $900.00 awarded to tenant; Call Out Fee For Draught Stopping: $65.00 awarded to landlord; Compensation: no vacant possession 3…: $1,080.00 awarded to tenant; Filing Fee: $20.44 awarded to landlord; Plumber To Check: $152.95 awarded to landlord; Property Damage: $350.00 awarded to landlord; Property Damage: $1,400.00 awarded to landlord

What type of tenancy dispute was case 4714430?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4714430?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10736291-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4714430?

The tribunal order states: Danelle Maree Stella and Alexandra Steven Lee to pay Emma Frances

How much money was awarded in case 4714430?

36 Weeks: $900.00 awarded to tenant; Call Out Fee For Draught Stopping: $65.00 awarded to landlord; Compensation: no vacant possession 3…: $1,080.00 awarded to tenant; Filing Fee: $20.44 awarded to landlord; Plumber To Check: $152.95 awarded to landlord; Property Damage: $350.00 awarded to landlord; Property Damage: $1,400.00 awarded to landlord

What type of tenancy dispute was case 4714430?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4714430?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10736291-Tribunal_Order.pdf.

Unit/Flat 1, 342 Rosetta Road, Raumati Beach, Tenancy Tribunal Case 4714430 — Property damage

Claims and awards in Tenancy Tribunal application 4714430 — net $8.39 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
BY CONSENT - Insurance excess for the walls	$350.00		BY CONSENT - Insurance excess for the walls
Insurance excess for damaged carpet 4 x	$1,400.00		Insurance excess for damaged carpet 4 x
Plumber to check	$152.95		Plumber to check
Call out fee for draught stopping	$65.00		Call out fee for draught stopping
Filing fee reimbursement	$20.44		Filing fee reimbursement
Compensation: no vacant possession 36 weeks x		$1,080.00	no vacant possession 36 weeks x
36 weeks		$900.00	36 weeks
Total award	$1,988.39	$1,980.00
Net award	$8.39
Bond	$1,320.00
Total payable by Tenant to Landlord	$8.39

Claims and awards in Tenancy Tribunal application 4714430 — net $8.39 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
BY CONSENT - Insurance excess for the walls	$350.00		BY CONSENT - Insurance excess for the walls
Insurance excess for damaged carpet 4 x	$1,400.00		Insurance excess for damaged carpet 4 x
Plumber to check	$152.95		Plumber to check
Call out fee for draught stopping	$65.00		Call out fee for draught stopping
Filing fee reimbursement	$20.44		Filing fee reimbursement
Compensation: no vacant possession 36 weeks x		$1,080.00	no vacant possession 36 weeks x
36 weeks		$900.00	36 weeks
Total award	$1,988.39	$1,980.00
Net award	$8.39
Bond	$1,320.00
Total payable by Tenant to Landlord	$8.39

Order

Danelle Maree Stella and Alexandra Steven Lee to pay Emma Frances McIntosh $8.39 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,320.00 (3332732-008) immediately apportioned as follows: Emma Frances Mcintosh: $8.39 Danelle Maree Stella, Alexandra Steven Lee: $1,311.61
All other clams are dismissed.

Reasons

Both parties attended the hearing.
Ms Stella was represented by her lawyer, Ms Pointon. Ms Stella hoped that she could accept full responsibility for the damage but I find that orders should be made against both tenants because Mr Lee did not ask for a variation during the tenancy.
The tenancy premises are an upstairs flat above a light commercial building in a shopping centre. The tenancy lasted 36 weeks from 10 May 2023 and ended when the landlord gave a 90 day notice. The landlord has applied for compensation for damage and cleaning following the end of the tenancy. The tenant has applied for exemplary damages and compensation for a retaliatory notice, because the landlord stored her belongings in the bedroom, because of shared power and water meters, and because the flat was draughty and mouldy. Both parties want the bond. The questions I have to decide include: • Was the flat lawful premises? • Was the flat left in a reasonably clean condition? • Did the tenants cause damage? • Was the flat draughty? • Was the flat mouldy? • Did the landlord provide vacant possession? • What is fair compensation because of the shared utilities? • Did the landlord give a retaliatory notice? • Should the tenants pay the accountant’s fee?

Was the flat lawful premises?

I raised this as an issue and asked the landlord to provide information from the local council to show a mixed residential/commercial use was permitted. The landlord has provided me with copies of emails from a building compliance officer at the council which show the premises were inspected. It seems most likely to me that the council would have said something if the use was not permitted. I am satisfied the flat was lawful premises.

Was the flat left in a reasonably clean condition?

Tenants must keep the premises reasonably clean and tidy during the tenancy, and they must return them in a reasonably clean and tidy state and remove their rubbish at the end of the tenancy. See section 40(1)(c) and (e)(iii) Residential Tenancies Act 1986 (RTA).
In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.
The RTA does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.
There is a claim for cleaning carpets, sofas, and curtains at the end of the tenancy. The landlord said the flat smelled of cigarette smoke so the soft furnishings had to be cleaned before the new commercial tenant started using the flat. The landlord had statements from a number of people stating that the tenants smoked inside during the tenancy and that the flat smelled of smoke after the tenants moved out.
It is very hard to prove a smell. The claim for the curtain cleaning is not allowed because there was no invoice proving there was a cost to the landlord. The claim for carpet cleaning is not allowed because this was carried out by the ingoing commercial tenant, who could have her own motivations for completing additional cleaning. The claim for cleaning the sofas is not allowed because the Jae invoice does not mention that the cleaning was to remove a smell. This is the landlord’s claim to prove. She did not have an independent invoice recording the smell. I find the claim for cleaning is not proved and it is dismissed.

Did the tenants cause damage?

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 tenants 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. See section 49B(3)(a) 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.
The tenant at the hearing agreed to pay for two holes in the walls and one in a door. The tenant made submissions explaining how the damage occurred. It seems most likely to me this was careless damage. The weekly rent for the flat was $330. The claim is limited to the insurance excess of $350.
There is a claim for replacement carpet. The insurer accepted this claim because of holes and burn marks on the carpet. The landlord said the holes were most likely from cigarettes or hot oil. I don’t have many photos, but the holes look like cigarette damage to me. The insurer accepted the claim subject to four insurance excess payments of $350. The tenant said the holes were present when she moved in.
A property condition report was filled out at the start of the tenancy. The inspection was carried out by a representative for the landlord. Both tenants have signed the report. There is no mention of holes or burns. The tenant at the hearing said she never walked around the flat ticking off items and recording damage. The person who completed the property condition report gave evidence as a witness. He said he could not recall the specifics of the document, but he was sure he and a tenant completed the report together. It seems most likely to me the property condition report was properly completed at the start of the tenancy. It seems unlikely that burn marks such as I have seen in the photos would have been missed when “marks” on the carpets have been recorded.
The landlord has proved the carpet damage was caused during the tenancy. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The insurer has accepted the claim, despite the age of the carpet. I am persuaded I should allow the claim, in the total amount of $1,400.
There is a claim the tenants cut down a tree during the tenancy. The tree was located on an access way. The landlord said the tenants told her mother they cut it down. The landlord is claiming for the loss of the tree, and the cost of installing a barrier to prevent cars using the area as a car park. The tenants said the tree blew over in a storm and they tidied up the stump so they could continue to use the access way. The tenants’ explanation they thought the tree was on public land is credible. They said they never parked where they were not allowed. This is the landlord’s claim to prove. I am not more persuaded by the landlord’s evidence. This claim is not proved, and it is dismissed.
I find the tenants should pay for the plumber’s visit. The landlord was entitled to know the dishwasher had been removed properly, and that there was no potential for leaks. The amount claimed is reasonable and it is allowed.
The landlord has claimed lost rent. She had arranged for the new commercial tenant to move in the day after the tenants moved out. She said she could not charge the new tenant $700 in rent because of the damage and repairs. I am not persuaded by this claim. Prudent landlords allow time between tenancies for maintenance and repairs. This claim is dismissed.

Was the flat draughty?

The tenants claim that the landlord breached her obligation under section 45(1)(bb) of the RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenants consider that the landlord has failed to comply with the HHS draught stopping standard. The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The tenant’s submission is that there was a draught in the bedroom. This was fixed during the tenancy. The tenant said the landlord did not fix the draught within a reasonable period of time, however I do not have any supporting evidence the landlord was told about the draught earlier in the tenancy. The tenant has not proved there was a delay, and this claim is dismissed.
The landlord has claimed the cost of a call out by the tradesman who attended the flat to fix the draught after giving the required notice for repairs and maintenance. The $65 claimed is fair and reasonable and should be paid by the tenants. See section 48(1) and (2) RTA.
I note there is no requirement for landlords to provide curtains or a heater in the bedroom. These claims were dismissed at the hearing.

Was the flat mouldy?

The tenants claim the flat was mouldy. They provided me with photos of window sills in the bedroom which show dark marks and spots in the paint. The landlord said these marks were cigarette ash. This is the tenants’ claim to prove. I am not persuaded by either submission. It seems equally likely to me that the spots were dirty marks on the aging paint. As to the kitchen bench, it seems unlikely from the photos that the mark was mould. This claim is dismissed.

Did the landlord provide vacant possession?

The tenants have claimed compensation because they were not able to fully use the only bedroom in the flat because the landlord left her belongings stacked at one end of the room. This included sizable pieces of furniture. The area was screened using a tapa cloth. The tenant’s submission was that they found the storage areas intrusive, and they would bump against it when using the room. They also said they were forced to use the bedroom more than they usually would because the commercial tenant upstairs complained about noise when they used the lounge. The landlord said she always leaves her belongings in the bedroom and no other tenants have complained.
Section 39 RTA states that tenants shall have vacant possession of the premises on the date on which, in accordance with the tenancy agreement, the tenant is entitled to enter into occupation of the premises. I find there was a loss of amenity and inconvenience. The tenants have proved the claim. I find compensation in the amount of $30 a week to be reasonable.

What is fair compensation because of the shared utilities?

The tenants have claimed compensation because their power bills were very high during the tenancy. There was no check meter for this tenancy, and the tenancy agreement records that power is shared with two thirds being paid by the tenants and one third by the upstairs commercial tenant. The tenants said this caused great stress during the tenancy because their power bills were unusually high. The water rates were shared as well, with the tenants arbitrarily paying one quarter of every bill.
The RTA states that tenants are responsible for all outgoings in respect of the premises that are exclusively attributable to their occupation of the premises or to their use of the facilities (see s 39(3) RTA). Therefore, tenants are only liable for the electricity, gas, telephone and internet they use, and for water charges based on consumption. They are not liable for fixed water charges. See section 39(4) RTA.
Where utilities are shared between more than one dwelling or building, the landlord will not be able calculate a tenant’s share of outgoings without a separate water meter or check meter. A tenant is therefore not liable to pay for electricity charges on a meter shared with other premises Even if the tenant’s electricity usage can be calculated, a strict application of s 39(3) RTA means they will not be liable for fixed line charges, as they are not exclusively attributable to their occupation of the premises. See Green v McGregor [2015] NZTT Waitakere 1292.
Section 11(1) RTA provides that any agreement or arrangement that is inconsistent with any provision of the Act is of no effect. However, the District Court has held that section 85 RTA should be considered when deciding whether to strictly apply s 39(3) and order a full refund of utilities paid by the tenant. In that case, the District Court directed a rehearing of the original order to refund $6,432.48. At the rehearing the tenant confirmed she was not seeking a full refund of her electricity payments, and the Tribunal found that a strict application of s 39(3) would produce an unfair and unjust result. See Geraghty and Jones v Raui [2019] NZDC 3813.
I find there was a breach by the landlord and compensation should be allowed. The usual compensation would be to look at the bills paid during the tenancy and assess a fair compensation. This is the tenants’ claim to prove. They did not provide me with any supporting evidence showing what they paid for power and water during their tenancy. In the absence of the actual bills I have allowed a low rate of compensation at $25 a week, to recognise that the tenants will never know if their utilities payments were fair.

Did the landlord give a retaliatory notice?

The landlord gave the tenants a 90 day notice ending the tenancy in January 2024. The tenants claim the notice was retaliatory. The notice was given after the tenants exercised their rights and would not allow entry for an inspection. The tenants believe the 90 day notice was retaliatory. For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) RTA.
In reply the landlord said it was always her intention to return the residential tenancy back to commercial premises. Giving notice for this reason is allowed by section 51(2)(e) RTA, provided the commercial lease lasts for 90 days. The landlord provided a letter dated 23 April 2024 from a sales and leasing broker for commercial and industrial property from Bayleys. This letter states that the landlord approached the broker in early 2023 and confirms the plans to revert the entire building to commercial lease holders was a pre-existing plan ahead of serving the 90 day notice. I have not seen a lease but there has been no challenge to the landlord’s submission about a commercial tenant moving in. The lease has lasted more than 90 days.
I am not persuaded that the notice was retaliatory because it seems most likely to me the intention to give the notice terminating the tenancy existed before the tenants refused entry. This claim is dismissed. Should the tenants pay the accountant’s fee?
The landlord has claimed the accountant’s fee for sorting out what rent and utilities were paid during the tenancy. I am not allowing this claim. It is not unusual for landlords to use accountants to reconcile rent accounts, but this is always at their own cost. Half of the accountant’s bill included calculating the payments for power and water, which would not have been necessary if the tenants had their own power account and water meter. This claim is dismissed. Other orders
The request for the bond refund has been sent to the Bond Centre.
Because the landlord has substantially succeeded with the claim I have reimbursed the filing fee.
The landlord did not make an application for suppression. The tenants’ application for suppression is not allowed because the tenants are not the most successful party. While I acknowledge that there is the smallest amount owing to the landlord, there is public interest in names when there is damage to tenancy premises. See section 95A RTA.

Tenancy Tribunal case 4714430 — Property damage at Unit/Flat 1, 342 Rosetta Road, Raumati Beach,

At a glance

Tenancy Tribunal case 4714430 — Property damage at Unit/Flat 1, 342 Rosetta Road, Raumati Beach,

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the flat lawful premises?

Was the flat left in a reasonably clean condition?

Did the tenants cause damage?

Was the flat draughty?

Was the flat mouldy?

Did the landlord provide vacant possession?

What is fair compensation because of the shared utilities?

Did the landlord give a retaliatory notice?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the flat lawful premises?

Was the flat left in a reasonably clean condition?

Did the tenants cause damage?

Was the flat draughty?

Was the flat mouldy?

Did the landlord provide vacant possession?

What is fair compensation because of the shared utilities?

Did the landlord give a retaliatory notice?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions