What was Tenancy Tribunal case 4721570 about?

The tribunal order states: [The tenant/s] to pay [The landlord/s] $731.62 from the bond, calculated as

How much money was awarded in case 4721570?

Cleaning: $100.00 awarded to landlord; Property Damage: $631.62 awarded to landlord

What type of tenancy dispute was case 4721570?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4721570?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9860088-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4721570 about?

The tribunal order states: [The tenant/s] to pay [The landlord/s] $731.62 from the bond, calculated as

How much money was awarded in case 4721570?

Cleaning: $100.00 awarded to landlord; Property Damage: $631.62 awarded to landlord

What type of tenancy dispute was case 4721570?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4721570?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9860088-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4721570 — Property damage

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 4721570 — net $731.62 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs to bathroom vanity	$631.62	Repairs to bathroom vanity
Carpet Cleaning	$100.00	Carpet Cleaning
Net award	$731.62
Total payable by Tenant to Landlord	$731.62

[The tenant/s] to pay [The landlord/s] $731.62 from the bond, calculated as shown in table below.

The Bond Centre is to pay the bond of $731.62 ([Bond number suppressed]) to [The landlord/s] immediately. The Bond Centre is to pay the bond of $ 1,868.38 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing.

The tenancy commenced on 13 October 2022 and ended on 13 October 2023. On 25 October 2023, the tenant filed an application seeking refund of the bond. On 13 November 2023, the landlord filed a counterclaim alleging that the tenant had failed to leave the property, including the carpet, in a reasonably clean condition, and was responsible for damage to the bathroom vanity, the dish drawer, and the kitchen sink. The tenant opposes the claim and submits that because of things said, and done, at the final inspection the landlord should be estopped or barred from bringing the claim.

The onus of proving these claims rests with the landlord. The standard of proof is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the tenancy agreement or provisions of the Residential Tenancies Act 1986 (The “Act”). Law

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, including carpets and remove all rubbish.

To succeed with a claim for damage the landlord must prove that damage 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 of the Act.

Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).

Where the damage is careless, and occurs after 27 August 2019, section 49B of the Act 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) of the Act.

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) of the Act. 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) of the Act.

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) of the Act.

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.

In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord.

In awarding compensation for damage, the Tribunal must also consider 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, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful lifespan.

The Tribunal may make any orders that the High Court or District Court may make under any enactment or rule of law relating to contracts (see s 78(1)(h) the Act). This includes equitable remedies such as estoppel.

Estoppel is a legal principle preventing someone, in this case the landlord, from arguing something contrary to what has been agreed or implied by a previous action or statement. A party claiming an equitable estoppel must establish that: -A belief or expectation has been created or encouraged through some action, representation, or omission to act by the other party. -The belief or expectation has been reasonably relied on to their detriment. -It would be unconscionable for the party against whom the estoppel is alleged to depart from the belief or expectation.

The underlying principle of equitable estoppel is to prevent the exercise of strict legal rights in circumstances where the exercise of them would be unconscionable. This principle is entirely consistent with the jurisdiction of the Tenancy Tribunal (Stella & Carey v Bay of Islands Realty Limited & Kirkman [2016] NZTT Kaikohe 4051975 & 4053657), in particular s 85(2) the Act, provides that:

The Tribunal shall determine each dispute according to the general principles of law relating to the matter and the substantial merits and justice of the case but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. Cleaning and carpet cleaning

The landlord is claiming $200.00 for removing stains from the carpet in two bedrooms and the stairs. Around 7pm on the last day of the tenancy, the landlord conducted an end of tenancy inspection. After the completion of the inspection, the landlord agreed to refund the bond in full. Both parties then completed and signed the bond refund form. Later that evening, at around 9pm, and after the tenant had removed all their possessions, the landlord discovered stains on the carpet in two bedrooms, earlier undetected. The landlord stated that while they had noticed the stain on the bottom of the stairs, as that it was the only stain detected did not raise it as an issue.

The tenant submits that, having completed an inspection, and agreed to refund the bond in full, that the landlord should be estopped or barred from bringing the claim against the bond.

In my view, any action or statement on the part of the landlord barring a subsequent claim must follow actual or constructive notice of the defect concerned. The landlord must either know or, exercising reasonable diligence, have been able to be aware of the defect concerned.

In this case, I am not satisfied that the landlord was aware or in a position to accurately determine the condition of the carpet in the bedroom that was still occupied. I am satisfied that the staining in the other empty bedroom should have been obvious to the landlord, and as stated the stain on the carpet in the stairs was noted at the inspection. I am satisfied that the landlord should be estopped from bringing the claim concerning the stains in that bedroom and the stairs, but not the stains in the bedroom occupied at the time of the inspection. I award the landlord $100.00 toward the cleaning of the carpet.

The landlord has withdrawn their claim relating to general cleaning. Bathroom vanity

This is another claim in which the tenant argues estoppel. After the tenant had vacated, the landlord discovered a stain on the bathroom vanity previously obscured by a bottle of cleaning solution belonging to the tenant, which they had left behind. The landlord states when earlier inspecting the bathroom, they had not thought to lift the bottle, and were therefore unaware of a stain until it was removed later that evening. The landlord states that they attempted to remove the stain but were unsuccessful. The landlord has produced photograph of the stain and the bottle in situ. The vanity was three months old at the commencement of the tenancy and in a near new condition.

The tenant states that while they were aware of the stain and did not bring it to the landlord’s attention, they did not intentionally place the bottle in such a way to obscure it. The tenant has no explanation as to how the stain may have occurred.

The landlord states that it is consistent with having been caused by hair dye or similar substance and that it was likely the result of carelessness. On the evidence I am satisfied that the damage occurred during the tenancy and that it is more than fair wear and tear, likely the result of carelessness. I am not satisfied that the landlord should be estopped from bringing the claim. At the material time the landlord had insurance for damage caused by tenants with an excess of $550.00 per claim. As the damage was careless the tenant is entitled to the benefit of that insurance. The landlord is claiming $550.00 to replace the unit, like for like, and has also produced a quote for $151.80 to have it plumbed in, a total claim of $701.80. I must take in account betterment and depreciation. The useful lifespan of fitted furniture, such as bathroom vanities, in rental properties is typically around 15 years. I reduce the total amount claimed by 10% and award the landlord $631.62. Dish drawer and kitchen sink

After the end of the tenancy the landlord attempted to run the single dish drawer through a wash cycle but discovered that it was not working. Above the dish drawer and nearby is the kitchen sink made from a composite stone / glass material. Forming part of the sink is a drainage area also made from the same material. The landlord stated that during the pre-end of tenancy inspection, they noticed that the sink had been freshly wiped / wetted. As the sink dried, the landlord states, they noticed that it was covered with water marks. A photograph has been produced.

The landlord states the damage to the dish drawer was not reported, and that that the water marks have likely been caused by repeatedly leaving dishes to dry in a rack on the area concerned. The landlord states that the dish drawer was at least 6 years old at the commencement of the tenancy, the sink about three months old, and undamaged.

The issue is whether the tenant has caused damage to the dish drawer and whether damage is more than fair wear and tear. The tenant states that they never used the dish drawer, preferring to do the dishes by hand. The tenant states that at the commencement of the tenancy, they had turned the unit off at the wall and were unaware that it was damaged.

The useful lifespan of dishwashers and other such appliances in rental properties is around 6 years. On this basis, the unit was well past its useful life span. Other than the landlord’s oral evidence the unit would not cycle, there is no other evidence produced.

Having heard from the parties, I cannot rule out that there may have been a defect with the unit at the commencement of the tenancy and cannot, therefore, be satisfied that the damage occurred during the tenancy.

Dealing with the sink. The issue in this case is whether water staining caused by leaving dishes to dry in a dish rack, on an area of sink designed for that purpose, is damage more than fair wear and tear.

The landlord submits that a reasonably prudent tenant would have wiped down the drainage area after each use, to avoid any water sitting, or having noticed that watermarks were forming, to cease the practice. There was however no instruction provided from the landlord on how to use the sink. Not all composite sink tops are created equal. Those of a higher quality or made from less porous material, such as stainless steel, may be more resistant to water staining.

The tenant accepts that they left dishes to dry in the rack on the drainage area of the sink. The tenant states that water marks occurred slowly over the course of the tenancy. On the evidence, I am not satisfied that the tenant has used the sink otherwise than for its intended purpose, and on that basis, while watermarks have resulted, I am not satisfied that this is damage more than fair wear and tear. The claim concerning the dish drawer and the kitchen sink is dismissed. Costs

Both parties seek reimbursement of their respective filing fees. Arguably both have at least been partly successful triggering the Tribunals discretion to order reimbursement of the filing fee. However, as reimbursing the filing fee to one would effectively cancel reimbursement to the other, and vice versa, I make no order for reimbursement. Name suppression

Both parties seek name suppression.

Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.

While neither party has been wholly successful, standing back and considering the matters before the Tribunal, overall, I consider that both have been substantially successful either bringing or defending the claims. On that basis I order suppression of both party’s names and the address of the property.

Order

Claims and awards in Tenancy Tribunal application 4721570 — net $731.62 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs to bathroom vanity	$631.62	Repairs to bathroom vanity
Carpet Cleaning	$100.00	Carpet Cleaning
Net award	$731.62
Total payable by Tenant to Landlord	$731.62

[The tenant/s] to pay [The landlord/s] $731.62 from the bond, calculated as shown in table below.

Reasons

Both parties attended the hearing.

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, including carpets and remove all rubbish.

The tenant submits that, having completed an inspection, and agreed to refund the bond in full, that the landlord should be estopped or barred from bringing the claim against the bond.

The landlord has withdrawn their claim relating to general cleaning. Bathroom vanity

Both parties seek name suppression.

Tenancy Tribunal case 4721570 — Property damage

At a glance

Tenancy Tribunal case 4721570 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions