What was Tenancy Tribunal case 4720649 about?

The tribunal order states: Don Varghese must pay [The landlord/s] $20.44 immediately, calculated as

How much money was awarded in case 4720649?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $2,320.00 awarded to landlord

What type of tenancy dispute was case 4720649?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4720649?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9727697-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4720649 about?

The tribunal order states: Don Varghese must pay [The landlord/s] $20.44 immediately, calculated as

How much money was awarded in case 4720649?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $2,320.00 awarded to landlord

What type of tenancy dispute was case 4720649?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4720649?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9727697-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4720649 — Rent arrears

Claims and awards in Tenancy Tribunal application 4720649 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears (28 days in lieu of notice	$2,320.00	Rent arrears (28 days in lieu of notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$20.44
Total payable by Tenant to Landlord	$20.44

Claims and awards in Tenancy Tribunal application 4720649 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears (28 days in lieu of notice	$2,320.00	Rent arrears (28 days in lieu of notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$20.44
Total payable by Tenant to Landlord	$20.44

Order

Don Varghese must pay [The landlord/s] $20.44 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,320.00 ([Bond number suppressed]) to [The landlord/s] immediately.
All other applications are dismissed.

Reasons

Both parties attended the hearing.
The tenant and his wife (also referred to as a tenant in this decision) seek a declaration that the tenancy ended on 12 October 2023 by mutual agreement; and they also seek compensation for failing to maintain the carpet, the lawns and the landlord using the garage for storage.
The landlord filed a cross application for termination of the tenancy for abandonment, rent arrears and refund of the bond. However, it was agreed at the hearing that there is no need for a termination order because the tenants confirmed they had vacated the premises, left the keys inside, and the landlord is entitled to possession of the premises. Did the tenancy terminate by mutual agreement or did the tenants fail to give notice?
The tenancy started in 2018 for a fixed term. Subsequently, the tenancy was renewed with the last renewal starting on 13 October 2022 and ending on 12 October 2023. Usually, the landlord contacted the tenants prior to the fixed term ending to ascertain whether they wished to renew the tenancy for a further term. The parties would then sign a new tenancy agreement.
Section 60A(1) Residential Tenancies Act 1986 (RTA) provides that on the expiry of a fixed-term tenancy, it continues as a periodic tenancy with the same terms. However, s60A(2) provides that the tenancy does not continue as a periodic tenancy if,— (a) before the expiry, the parties renew or extend the existing tenancy agreement; or (b) before the expiry, the parties agree not to continue with the tenancy; or (c) at least 28 days before the expiry, the tenant gives the landlord written notice of the tenant’s intention not to continue with the tenancy; or (d) before the expiry, a party gives notice as mentioned in any of section 50(1)(a) to (b) that terminates the tenancy on or before the expiry or that would do if the tenancy were already periodic.
As the last term was coming to an end, the parties exchanged messages about whether to renew or end the tenancy. There is considerable dispute between them as to what was agreed. The tenants claim there was a mutual agreement to end the tenancy on the last day of the fixed term, 12 October. However, the landlord says that no agreement was reached, and the tenants did not give the required notice to end the tenancy. The landlord seeks 28 days’ rent in lieu of notice.
The landlord contacted the tenant’s wife to notify her of an intended inspection on 20 August 2023. The landlord raised the issue of the tenancy renewal. At the time, the tenant had been away for several months in India and was returning at the end of August. The landlord says that the tenant’s wife indicated that they would stay. On 28 August, the landlord sent the tenants a message suggesting they meet the following weekend to discuss ending or renewing the tenancy. The parties discussed the matter by telephone and the tenant indicated he would let the landlord know the decision that weekend.
On 4 September, the landlord sent four emails to the tenant. In the first email at
06pm, the landlord advised of the increased rent she would charge after the fixed term expired; confirmed that a new fixed term tenancy contract would be required; recorded that the tenant hadn’t updated the landlord about his decision and ended with: “If no reply from you by Tuesday 5/9/2023 cos it was pending. Then that assume to happy to end of the” (The email is incomplete but ends here.)
The tenant says that he interpreted the last line of the above email to mean that if the tenant did not get back to the landlord with a decision by 5 September, then they would assume the tenants no longer wished to continue the tenancy.
However, shortly after this first email, the landlord sent a second email at
08pm which said: “Please ignore this email cos it was by accidentally sent.”
The landlord then sent another email at 7.20pm giving a 60-day notice of the rent increase from 4/10/2023. Realising the date of the increase was incorrect, the landlord sent another rent increase notice at 7.32pm advising that the rent increase would take effect from 4/11/2023.
I am not persuaded that the first email can be interpreted as an agreement that the tenancy would terminate on expiry of the fixed term in the absence of a reply from the tenant for several reasons. The wording of the email is incomplete and is open to different interpretations; the landlord immediately advised it was sent in error and told the tenant to ignore it; there were several errors in the email which makes it unsurprising that it was withdrawn as an error. For example. it purported to suggest a rent increase on the expiry of the term, but 60 days’ notice must be given; and the landlord stated that another fixed term tenancy contract would be required which is not strictly correct given that s60A prohibits a landlord from insisting on a renewal for a fixed term.
After the 4 September emails, the landlord gave notice to inspect on 21 September. The tenant rang the landlord on 21 September when she did not turn up on time. The landlord advised that she was running late but would still come. The landlord asked the tenant if he received the rent increase notice. The tenant advised that he could not afford the increase. The landlord acknowledges that the tenant advised her that he might be moving out. She then proposed that if he agreed to a six-month term (rather than it becoming to a periodic tenancy) she would reduce the rent increase. The tenant said he would think about it and advise the landlord by the following Monday. However, the tenant did not contact the landlord and there were no further communications between the parties before the tenants vacated the premises.
The tenant says they paid rent up to 12 October, the expiry date of the fixed term, and had moved out by that date. They left the keys inside the house. They did not advise the landlord that they had left.
The landlord did not know the tenants had vacated but noticed rent had not been paid. On 16 October, the landlord sent notice to inspect on 18 October. The landlord arrived at the premises first and noticed that the exterior sunroom door was open and discovered most of the tenants’ belongings were gone. However, they had left two sofas, some carpets, and some bedding. The landlord also says the grounds were untidy and bags of rubbish had been left. When the tenants arrived, only then was the landlord advised that the tenants had vacated a week ago. The landlord advised the tenants that they were required to give notice to end the tenancy and had not done so. The landlord assumed when they did not hear from the tenants, that they were staying and agreed to a rent increase for a periodic tenancy.
The parties tried to negotiate a solution with the landlord advising that the tenants needed to remove the rest of their belongings and tidy the house and grounds. The tenants sought to hand the keys to the landlord, but the landlord did not accept them on the basis that the tenancy was ongoing.
After carefully considering all the available evidence including the parties’ oral evidence, I am not persuaded by the tenants’ argument that the parties reached a mutual agreement to end the tenancy on 12 October. In the absence of a mutual agreement, the tenants were required to give 28 days’ written notice of their intention not to continue with the tenancy. They failed to give the required written notice.
The parties agreed that rent was paid up to 12 October. 28 days’ rent in lieu of notice is owed to the landlord.

Has the landlord breached their obligations to repair and maintain?

Don Varghese claims that the landlord has breached their obligations under section 45 RTA to provide and maintain the premises in a reasonable state of repair.
The tenants claimed that the hot water cylinder in the hallway cupboard leaked in June 2020 and saturated the carpet in the hallway and the lounge area. They reported it to the landlord who fixed the leak 2-3 weeks later. The tenant claims that the landlord did nothing to dry out the carpets and over the next few weeks the carpets became mouldy and dirty. Over the next three years of the tenancy, the carpet deteriorated. Photos were produced showing that the carpet was dirty, stained and very worn at the end of the tenancy. The tenants admit that some carpet stains were caused by their young child. The tenants used a Rug Doctor on occasion to clean the carpets but were unable to remove the stains. They say that the landlord refused to replace the carpet when asked at the regular inspections which took place. The tenants also offered to pay for half of the carpet replacement, but the landlord refused. Eventually, the tenants purchased carpets to place on top of the damaged carpet.
The tenants did not have evidence (such as photos) to show the state of the carpets after the hot water cylinder leak nor during the period of the tenancy before it came to an end. They also did not have written evidence of their notifying the landlord of the state of the carpets and requests for replacement. When the leak occurred, the first text message produced between the parties dated 17 June 2020 is from the landlord asking the tenant if the valve is still leaking. Subsequent messages record intended visits from the landlord and then a plumber and electrician to address the issue.
The landlord and her husband (who was also involved in completing inspections during the tenancy) say that there was no interior leak and no leak reported by the tenants in June 2020. The landlord’s husband is a mechanical engineer. He advised that when carrying out a regular inspection, he noticed water leaking from an exterior drainpipe. He checked the hot water cylinder and noted that the tap was in the off position and there was no water at all inside the house. He determined that it was probably a faulty valve which he changed. However, the leaking continued. At that point he engaged a plumber to fix the issue. He also decided that because the cylinder was old, it was a good opportunity to replace it with an infinity system. This work was completed by 1 July 2020, as evidenced by the plumbing invoice produced in evidence by the landlord.
Prior to this incident, the landlord says that during a regular inspection in December 2019, the tenant told the landlord about a hot water cylinder leak which had wet the small area of carpet inside the cupboard housing the cylinder. The landlord engaged a plumber who fixed the leak. The plumbing invoice produced in evidence records: “...found the drain for hot water cylinder crox nut leaking, tighten crox nut which stopped the leak, if leaks again cylinder drain down is required to re do fitting....everything appears ok but no guarantee as cylinder is early 90s...tenant to monitor.”
The landlord says that the carpet inside the cupboard and a small area outside the cupboard in the hall was only slightly wet and would’ve dried out. The landlord asked the tenant to monitor and advise of any continuing problems. The tenant did not report any further issues. Photos produced in evidence taken at the end of the tenancy seem to indicate that the areas of carpet which are stained and marked do not include the area immediately outside the hallway cupboard which supports the landlord’s argument that the cylinder leak did not cause the extensive carpet damage in the lounge and hallway.
The landlord also gave evidence that she carried out regular inspections at the property and had noticed stains on the carpet caused during the tenancy. She produced emails to the tenants on 22 and 24 February 2020 in which she recorded that the carpet was dirty and disgusting with marks, spots, and rubbish everywhere which she asked the tenants to clean. The emails also record that the tenants promised to clean the carpet a year ago, but nothing had changed, and it was getting worse. The emails also record the landlord’s concern that the tenants did not report issues or damage, and the landlord only discovered some problems during inspections. The landlord says she had photos of the inspections stored on devices which were stolen in 2021. Therefore, she could not produce those photos to show the state of the carpet before this date.
After carefully reviewing the evidence, I am not satisfied that the tenants have proved that the damage to the carpet was caused through the landlord’s failure to maintain it. I am satisfied that the landlord took prompt steps to repair the cylinder leak in December 2019. There is no evidence that the tenants reported any further problems with the cylinder leaking and nor is there evidence that the leak caused serious damage to the carpet in the hallway and lounge. The next exterior leak in June 2020, discovered by the landlord, was fixed and the cylinder replaced. There is no evidence, such as photos or other documentary evidence, of this leak resulting in the hall and lounge carpets becoming saturated. However, there is evidence which supports the landlord’s claim that the carpet was damaged during the tenancy by the tenants as recorded in their February 2020 inspection and follow-up emails.
In summary, the tenants have failed to prove their claim on the balance of probabilities. Therefore, the claim is dismissed. Is the landlord liable to compensate the tenants for failing to mow the lawns and using the garage for storage?
The tenants claim that the landlord used the garage at the premises to store goods without their permission and wouldn’t remove the items when asked. However, the landlord claims that they left some furnishings in the house which the tenants wished to use during the tenancy. The tenancy agreement also records a list of furniture and chattels provided by the landlord. Subsequently, the tenants put some of the items in the garage and the landlord says that they never asked the landlord to remove them. I am satisfied there is no basis for the claim given that chattels were provided as part of the tenancy and there is no documentary evidence that the tenants asked the landlord to remove the items. The claim is dismissed.
The tenants also complain that the landlord stopped mowing the lawns during the tenancy. However, the tenancy agreement clearly states (as is usual) that the tenants are responsible for the lawns. The landlord explained that they did mow the lawns for the tenants a few times but then advised the tenants to do it, as required in the agreement. There is no basis for a claim, and it is dismissed.
As the landlord has substantially succeeded, they are entitled to suppression.

Tenancy Tribunal case 4720649 — Rent arrears

At a glance

Tenancy Tribunal case 4720649 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord breached their obligations to repair and maintain?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord breached their obligations to repair and maintain?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions