What was Tenancy Tribunal case 4719192 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,680.00 ([Bond number suppressed])

How much money was awarded in case 4719192?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

Where can I read the official tribunal order for case 4719192?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9898753-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4719192 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,680.00 ([Bond number suppressed])

How much money was awarded in case 4719192?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

Where can I read the official tribunal order for case 4719192?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9898753-Tribunal_Order_Redacted.pdf.

122 Selwyn Avenue, Mission Bay, Auckland 1071 Tenancy Tribunal Case 4719192 — Leaks

Order

The Bond Centre is to pay the bond of $2,680.00 ([Bond number suppressed]) immediately apportioned as follows:

Reasons

Both parties attended the hearing.
Ms Dasler represented Fahey Property Management Limited, the agent for Rystwej Trust Ltd. The tenants were [Tenant 1] and [Tenant 2], who lived at the property with their three children. During the hearing, [Tenant 1] addressed me while a [language] interpreter translated for [Tenant 2] due to his limited English proficiency. [Tenant 1] explained that her husband was present to support her but would not be speaking.
The tenancy began on 9 January 2019 and ended on 18 September 2023. The tenants vacated the property on 10 September 2023. The tenancy lasted for four years and eight months.
The tenants have requested a refund of their bond and compensation for living in a property with a recurring leak that damaged the kitchen floor and caused dampness and mould. Additionally, the tenants claimed that the landlord began repainting the premises during the tenancy without their consent.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. The tenants' case.
When [The tenant/s] first moved into the property on 9 January 2019, she found it in an extremely dirty and dusty condition requiring extensive cleaning. Throughout the tenancy thereafter, she repeatedly experienced leaks from multiple areas including ceilings ([The tenant/s] eldest child’s room), toilet area making water leak sound, kitchen sink and kitchen over the years. Despite reporting them promptly, these were dealt with only on a temporary basis by the landlord. [The tenant/s] submitted that these are the reasons to believe the persistent leaks led to dampness in the property causing recurring mould issues her family had to endure which also affected their health.
On 30 December 2022, there was a major burst of the kitchen water pipe, causing significant damage to the kitchen flooring. This left her kitchen non- functional and structurally hazardous for her entire family including 3 young children. [The tenant/s] said in the hearing that the landlord only did a temporary repair, leaving boards hammered over torn floor planks. The faulty kitchen remained unusable for over nine months until she vacated on 10 September 2023. Due to chronic exposure of her stove and washing machine to kitchen dampness over an extended period, they also broke down, according to the repair technicians who cited water damage. [The tenant/s] further submitted that her requests for prompt repairs went unheeded.
On 14 September 2023, painters engaged by the landlord entered and started working while [The tenant/s] still held tenancy since the tenancy only ended on 18 September 2023. [The tenant/s] alleged the entry was done without her knowledge or consent. [The tenant/s] submitted that this incident showed the landlord’s blatant disregard for tenant rights and privacy.
Finally, in responding to the landlord’s cross-application for not leaving the premises in a clean and tidy condition and compensation for damages when vacating the premises on 10 th September 2023, [The tenant/s] said she had cleaned all areas possible, as evidenced in the video files (3 minutes and 13 seconds and 1 minute and 59 seconds) and photos submitted to the Tribunal. Despite this, [The tenant/s] submitted that the landlord arranged professional cleaning services and billed her an excessive amount of $1,126. They also claimed $5,734 in painting costs, alleging [The tenant/s] left excessive scuffs and marks beyond reasonable wear and tear. [The tenant/s] wholly disputes these frivolous claims.
In summary, [The tenant/s] submitted that she experienced significant struggle over four years due to the landlord neglecting property maintenance, leading to leaks, broken appliances, and dangerous living conditions, severely compromising her well-being and rights as a tenant. [The tenant/s] seeks compensation for the landlord’s failure to maintain the property. The landlord’s reply to the tenant’s case.
Ms Dasler submitted that when [The tenant/s] moved into the property, she did not receive any complaints about the cleanliness or condition of the home. Over the four-year tenancy, her records show there were a few sporadic leaks reported at various times from areas such as ceiling, toilet and kitchen which were addressed and repaired promptly by her contracted tradespeople. Ms Dasler submitted that the only exception was a major kitchen pipe burst on 30 December 2022 which led to the kitchen floor damage. While insurance delays meant full repairs stretched over nine months, she arranged quick temporary fixes so [The tenant/s] had continued use of the kitchen throughout.
Regarding the allegations of mould issues, none of [The tenant/s] earlier emails or our periodic inspection reports makes any mention of the presence of dampness or mould in the home. Ms Dasler submitted that she would have had any such issues investigated and rectified if, as [The tenant/s] alleged, a few sporadic leaks had led to an increase of moisture level that cause the growth of mould.
Ms Dasler challenged [The tenant/s] allegation that the breakdown of stoves and washing machine in 2023 to water damage because [The tenant/s] fails to furnish any technicians' reports to validate such claims, while Ms Dasler’s repair invoices do not specify any leak-related faults. All appliances were repaired and replaced promptly.
Ms Dasler denies that her painters entered the premises without consent in September 2023. Ms Dasler submitted that [The tenant/s] had emailed consent earlier, allowing the landlord access for repairs after she moved out her belongings. Ms Dasler submitted that because [The tenant/s] email she treated it as a vacant house by then.
Ms Dasler alleges that when [The tenant/s] vacated the property, it was left in poor state below reasonably clean and tidy conditions, necessitating extensive professional cleaning and repairs. Ms Dasler submitted invoices cover essential works like oven/hood-grease removal, shower re-grouting, damaged blind replacements, painting of excessive wall scuffs/stains etc. Ms Dasler sent her photographic evidence and video file (19 seconds) from the final inspection supporting these claims.
In summary, Ms Dasler submitted that she acted responsibly by addressing maintenance issues promptly whenever notified by [The tenant/s] based on available records over four years. Ms Dasler submitted that [The tenant/s] allegations of failure to maintain and enter the premises for repair and painting without consent were unfounded. Ms Dasler further submitted that the landlord had already compensated her for her trouble during the tenancy by foregoing one week's rent (28-day notice to vacate the property would take the tenancy end date on 25 September 2023 instead of 18 September 2023). The landlord’s cross-application.
On behalf of the landlord, Ms Dasler claims the following: Cleaning Fees
$1,126 for professional cleaning services required to clean the property after the tenant vacated. This includes cleaning of appliances, range hood, oven, carpet etc.
Ms Dasler said that [The tenant/s] was initially informed cleaning would cost $250 but further cleaning was required beyond what was expected. Blind Repairs
$317 for repairs to two bedroom blinds that were damaged. This includes replacing fabric and blind rail caps. Bathroom Repairs
$1,038 to replace bathroom shower grout and silicone seals. The grout was excessively dirty from lack of cleaning during tenancy. Painting
$3,156 for painting walls, doors and windows where there were scuff marks and damage beyond normal wear and tear over 4+ years. Standard of proof
The applicant must prove all elements of the claim on the balance of probabilities; i.e., more probable than not.
In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while ‘balance of probabilities’ is a constant standard: It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it”.
This approach was confirmed by the majority of the Supreme Court in Z v Dental Complaints Assessment Committee [2008] NZSC 55, where the Court stated: [102] ... In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case. Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.
Section 97(4) Residential Tenancies Act 1986 provides that: ... the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law
It follows that, although the Tribunal is not bound by the usual rules of evidence when admitting evidence, where the allegation is serious, it is likely to require stronger evidence before finding the claim proved on the balance of probabilities.

Did the landlord comply with their obligations during the tenancy?

Based on the evidence presented, I make the following findings:
Under section 45(1)(b) of the Residential Tenancies Act 1986, the landlord is responsible for maintaining the premises in a reasonable state of repair, considering the age and character of the property.
[The tenant/s] alleges that she experienced persistent leaks from multiple areas of the house during her tenancy, despite promptly reporting the issues. She believes the leaks led to increased dampness and recurring mould issues that affected her family's health.
However, there is insufficient evidence to establish a causal link between the alleged leaks and increased dampness or mould in the property. [The tenant/s] has not provided expert evidence on moisture levels.
Ms. Dasler, the landlord's agent, does not dispute that [The tenant/s] reported leak issues, which her office addressed promptly. [The tenant/s] also does not dispute that repairs were carried out in response to her complaints.
While [The tenant/s] may genuinely believe that the leaks led to dampness and mould, her assertions amount to speculation rather than facts.
To succeed in this particular complaint, [The tenant/s] would need to provide evidence, such as moisture readings or expert evidence, showing that the leaks directly caused or exacerbated dampness or mould issues.
In the absence of such evidence, [The tenant/s] allegations regarding dampness and mould resulting from leaks must be dismissed. The available evidence is insufficient to establish the landlord breached section 45(1)(b) RTA.

Is compensation for not being able to use the kitchen for three days appropriate?

On 30 December 2023, there was a major leak in the kitchen. [The tenant/s] advised that, on the plumber's recommendation, they went to Coromandel with their family for three days. [The tenant/s] stated that the trip was impromptu and not pre-planned. The trip was organised so that the plumber could identify the issue and fix the floor without causing further inconvenience to [The tenant/s] and her family.
[The tenant/s] also complained that the kitchen floor was not restored to its original condition for 9 months. Ms. Dasler argued that the plumber had to remove all of the flooring, rip out all the rotten timber and replace it. The landlord did this without an insurance claim so that [The tenant/s] had a functional kitchen. It took longer to restore the kitchen floor to its original condition because the house was livable, and the kitchen was functional. Therefore, it was not a priority for the insurance to send a loss adjuster to assess the damage.
I accept Ms. Dasler's submissions that the landlord had to wait for the insurance to approve any work that was not urgent. I consider moderate compensation in favour of [The tenant/s] appropriate because [The tenant/s] was unable to use the kitchen for three days. If [The tenant/s] had stayed in Auckland, she would have had to spend money on food and endure inconvenience due to the major leak.
Accordingly, I consider a compensation payment of $250 appropriate for the inconvenience caused and the fact that [The tenant/s] was unable to use the kitchen for at least three days.

As per section 48(1) of the Residential Tenancies Act (“RTA”), the landlord is not allowed to enter the rented premises during the tenancy, unless the tenants freely give their consent at the time of entry or just before it. The landlord can enter the premises between 8 am and 7 pm for necessary repairs or maintenance under section 48(2)(d) of the RTA. However, the landlord must give the tenant a notice at least 24 hours before the intended entry and provide them with a reason for it.
On 10 September 2023, [The tenant/s] returned to the property to clean up the garden after moving out. To her surprise, she saw painters already working inside the house.
Ms. Dasler acknowledged that the landlord had instructed his painters to go to the property during the tenancy, do repairs, and repaint the interior after [The tenant/s] had vacated the property.
Ms. Dasler's argument is that [The tenant/s] was communicating with the responsible property manager, Ms. Fahey, via email about ending the tenancy early. As a result of the communication, [The tenant/s] gave consent to the landlord to do the repair work needed.
Ms Dasler relied on an email from [The tenant/s] to Ms Fahey to support her contention that the landlord was given consent to enter the premises during the currency of the tenancy.
On 7 September 2023 at 7:44 PM, [The tenant/s] sent an email to Ms. Fahey in which she said: “Hi Angela, I understand you are not prepared to end the tenancy early. If you are open, I propose the following next steps to close out the tenancy. One, I will continue to pay rent until the end of the notice, which is 18 September 2023. Two, I will move out of the property sooner. I believe this benefits you too as you can do any repair work needed and show potential tenants without our belongings there....” (emphasis mine)
Ms. Dasler stated that she considered the tenant’s email above to enter the property as consent to carry out repair work during the tenancy. This led the landlord to instruct his painters to commence repairs and repaint the interior of the house before the tenancy officially ended on 18 September 2023.
[The tenant/s] argued her email to Ms Fahey cannot be taken as consent to the landlord to enter the premises during the tenancy.
Ms. Dasler informed me that towards the end of the tenancy, the relationship between the parties had deteriorated due to a disagreement over the bond refund.
[The tenant/s] replied that during that time, she was negotiating with Ms. Fahey that she had to live with the kitchen flooring that had not been restored to its original condition for 9 months. She also mentioned that there was a discussion about the final inspection and refund of the bond with the intention of ending the tenancy early.
In my view, [The tenant/s] email to Ms Fahey on 7 September 2023 at 7.44 pm was not a counteroffer. It was [The tenant/s] giving consent to the landlord because: a. [The tenant/s] said “If you are open, I propose the following next steps to close out the tenancy”. b. The next steps to close out the tenancy are: i. One, I will continue to pay rent until the end of the notice, which is 18 September 2023. ii. Two, I will move out of the property sooner. I believe this benefits you too, as you can do any repair work needed and show potential tenants without our belongings there.
[The tenant/s] clearly stated in her email to Ms Fahey that she would take the necessary steps to end the tenancy on 18 September 2023, including allowing the landlord to repair and repaint the house's interior.
As a result, [The tenant/s] was unable to prove that the landlord had entered the premises without her consent during the tenancy.
Accordingly, [The tenant/s] failed to satisfy me that the landlord had entered the premises during the currency of the tenancy without consent. The claim under this heading is dismissed.
I turn now to address the landlord’s cross-application.

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) RTA. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) RTA. The tenant must also replace standard light bulbs.
Both parties provided video footage to support their positions. I informed them that it was up to me to decide whether [The tenant/s] left the premises reasonably clean and tidy based on my video footage review.
I can confirm that I have viewed the video footage from both parties.
I also received a routine inspection report from Ms. Dasler, which consisted of nine pages, dated 18th January 2024.
However, I cannot consider the routine report for the following reasons: a. Firstly, the report was not filed with the cross-application. b. Secondly, [The tenant/s] was not given an opportunity to review the report's contents before the hearing. c. Lastly, at the end of the hearing, I requested the parties to email the Registry a link for me to download the video files. I did not ask either party for additional reports.

What is reasonably clean and tidy condition?

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 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. In the present case, video footage.
The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in good condition will be easier to clean than older and worn surfaces, particularly painted surfaces. Generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy (Westwood v Western, DC Otahuhu, TT 2539/93 and 2540/93, 4 November 1994).
Contractual provisions that require a tenant to have the premises professionally cleaned at the end of the tenancy are generally unenforceable (s 11 RTA). Commercial carpet cleaning will only be required where it is necessary to return the carpet to a reasonable condition.
In my view, the tenant left the premises reasonably clean and tidy.
During the hearing, [The tenant/s] confirmed that she had agreed to pay $250 towards the cost of cleaning. The agreement was reached before my decision and will stand.
Accordingly, I cannot compensate Ms. Dasler for the full amount of the invoice because I consider [The tenant/s] left the premises reasonably clean and tidy except for the amount agreed upon, which is $250.

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 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.
Ms Dasler sought compensation for the following damages: a. Blind repairs (for repairs to two bedroom blinds that were damaged. This includes replacing fabric and blind rail caps); b. Bathroom repairs (to replace bathroom shower grout and silicone seals. The grout was excessively dirty from lack of cleaning during tenancy); and c. Painting (for painting walls, doors and windows where there were scuff marks and damage beyond normal wear and tear over 4+ years).
Ms. Dasler provided quotes for each of the repairs and informed me that the work was completed according to the quote.
During the hearing, Ms. Dasler did not specify how the damage was caused, whether it was done carelessly or intentionally. I reminded Ms. Dasler that [The tenant/s] had been a tenant for four years and eight months. Fabric damage is generally considered fair wear and tear unless there is evidence proving otherwise. However, there was no evidence to support the claim that the damage was not fair wear and tear.
The same principle applies to bathroom grout and silicone seals. [The tenant/s] and her family used the same shower for four years and eight months, and there is no evidence to suggest that any damage was caused carelessly or intentionally.
I also expressed my concern about the repainting job because the evidence indicated fair wear and tear after four years and eight months of tenancy. For instance, there were no drawings on the walls and no intentional damage to the walls, as seen in the photos and video footage.
In my view, Ms. Dasler failed to provide sufficient evidence to prove that the damages claimed against [The tenant/s] were not fair wear and tear. Therefore, Ms. Dasler's cross-application is dismissed in its entirety. Filing fee
I consider both parties have achieved a favourable outcome and they should each bear their own costs. Name suppression
Because [The tenant/s] has substantially succeeded in proceedings, I must order that her name or identifying particulars not be published under section 95A(1) of the RTA.
Accordingly, I order [The tenant/s] name or identifying particulars not be published.

Tenancy Tribunal case 4719192 — Leaks at 122 Selwyn Avenue, Mission Bay, Auckland 1071

Tenancy Tribunal case 4719192 — Leaks at 122 Selwyn Avenue, Mission Bay, Auckland 1071

Order

Reasons

Did the landlord comply with their obligations during the tenancy?

Is compensation for not being able to use the kitchen for three days appropriate?

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

What is reasonably clean and tidy condition?

Is the tenant responsible for the damage to the premises?

Order

Reasons

Did the landlord comply with their obligations during the tenancy?

Is compensation for not being able to use the kitchen for three days appropriate?

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

What is reasonably clean and tidy condition?

Is the tenant responsible for the damage to the premises?

Order

Reasons

Did the landlord comply with their obligations during the tenancy?

Is compensation for not being able to use the kitchen for three days appropriate?

Did the landlord enter the premises without consent?

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

What is reasonably clean and tidy condition?

Is the tenant responsible for the damage to the premises?

Order

Reasons

Did the landlord comply with their obligations during the tenancy?

Is compensation for not being able to use the kitchen for three days appropriate?

Did the landlord enter the premises without consent?

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

What is reasonably clean and tidy condition?

Is the tenant responsible for the damage to the premises?