What was the outcome of Tenancy Tribunal case 4746733?

The tribunal order states: The tenant is ordered to remove the BBQ and large tyre from the premises no

How much money was awarded in case 4746733?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4746733?

The primary dispute was Rent arrears. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4746733?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9794047-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4746733?

The tribunal order states: The tenant is ordered to remove the BBQ and large tyre from the premises no

How much money was awarded in case 4746733?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4746733?

The primary dispute was Rent arrears. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4746733?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9794047-Tenancy_Tribunal_Order.pdf.

20 Amherst Place, Albany, Auckland 0632 Tenancy Tribunal Case 4746733 — Rent arrears

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20 Amherst Place, Albany, Auckland 0632 Tenancy Tribunal Case 4746733 — Rent arrears | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4746733. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

The tenant is ordered to remove the BBQ and large tyre from the premises no later than by 1:00pm on 23 December 2023. If the tenant fails to remove those items by that date and time, the landlord may dispose of them as he sees fit.
All other claims are dismissed.

Reasons

The Tribunal must consider an applications filed by both the landlord and tenant.
Both parties appeared at the hearing today.

BACKGROUND

For the purpose of this decision, the following is relevant. a. On 7 November 2023 the Tribunal issued a decision terminating the tenancy on the basis of significant rent arrears (4704329). Possession was ordered to return to the landlord at 11:59pm on Thursday 9 November. The tenant was not at that hearing, and later applied for a rehearing which was declined. b. The landlord attended the premises on 10 November. Somebody was present at the tenancy, who called the tenant who arrived about 20 minutes later. The landlord had a locksmith with him to change the locks. My impression is that the tenant gave the landlord possession of the premises, and the locks were changed. The tenant was able to take some goods with her at that time. c. The tenant removed most of the tenants goods, and put them in storage. d. There is a dispute between the parties as to whether the landlord had seized the goods, I will discuss that shortly. e. Both parties applied to the Tribunal, and following that the landlord returned the tenants goods, which the tenant has place in storage herself. f. A hearing was convened before the Tribunal in the North Shore District Courthouse on 21 December 2023. Both parties were in attendance. The landlord seek an order for costs around the ‘eviction’, and the tenant seeks orders in relation to goods alleged to be missing.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

TENANTS CASE

The tenant states that when the original order was issued by the Tribunal, the tenant received the email but without the order being attached. The tenant states that she thought the order would be emailed out to her, so it was not received until later.
The tenant said that the landlord was holding her goods as a security in order to pay the amount owed to the landlord, and that the landlord would not release the goods until she had paid the amount of the order. The tenant said that she made efforts to find the money to pay the landlord, but was not able to find the funds.
The tenant confirmed that she has more recently obtained most of her goods, which she has moved into her own storage facility.
The tenant states that a ladder was missing from the premises at the end of the tenancy which is owned by a company she works for. The tenant also says that some kitchenware is missing, but states she is not sure what else is missing because she has not had an opportunity to go through the goods in her storage. The tenant seeks an order in relation to missing goods.

LANDLORDS CASE

The landlords states that he, his wife and a friend went to the premises with a copy of the notice. Someone was there that he did not know, and the landlord told them they needed to leave the property given the earlier Tribunal order. The tenant was called and arrived about 20 minutes later. The landlord states he allowed the tenant to take some of the items, which the tenant then took before the locks were changed.
The landlord states that the tenancy was a difficult one with the tenant not paying rent or keeping to undertakings.
The landlord confirmed that he had moved the tenants goods out to another location, and then set about cleaning the premises. The landlord denies that he seized the tenants goods. When I referred to a text message on file that suggested otherwise, the landlord said that was sent in the heat of the moment.
The landlord states that after the tenant had filed her application, he sought advice from Tenancy Services which was conflicting, but that Tenancy Services said “we had to let her pick it up which was fine” meaning the tenant goods. My impression is that following that he set about making arrangements with the tenant to obtain her goods, but states that the tenant did not comply with agreements.
The landlord confirmed that he had found some items from the tenant in a draw, and confirmed they were in his car at the hearing. At the end of the hearing the parties agreed that the tenant would go with the landlord to his car to get those items. Further there is a large tyre and BBQ still at the house.

ANALYSIS

The tenancy was terminated by order of the Tribunal. The claims currently before the Tribunal relate to events following that termination, in fact events after the landlord took possession of the premises.
It is relevant to note that the tenancy was terminated by order of the Tribunal, and that order required that possession return to the landlord at 11:59pm on 9 November 2023. The tenant failed to comply with that lawful order. It is also relevant to note that the RTA requires that at the end of the tenancy, the tenant remove all her goods and return the premises to the landlord in a reasonably clean and tidy state. The tenant did not comply with that obligation either.
Ultimately the landlord attended the premises on 10 November, and I accept that the tenant voluntarily returned possession to the landlord at that time. While the tenant did take some of her goods, a large amount of goods was left behind.
I am not in a position to comment on what the landlord says he was advised by Tenancy Services as it relates to the tenants goods. I cannot know what Tenancy Services were told orally, so it is not clear to me what their advice was based on. Given what the landlord has described, I do however get the impression that Tenancy Services may have believed the goods had been abandoned.
There are provisions in the RTA that allow a landlord to dispose of abandoned goods at a tenancy, but there is no doubt that the goods in this case have not been abandoned. The tenant was in communication with the landlord, and it is plain she wanted her goods back. I have no doubt the goods were not abandoned.
Section 33 of the RTA prohibits a landlord from seizing tenant goods. That provision confirms: 33 Tenant’s goods not to be seized (1) The landlord shall not be entitled to seize or dispose of any of the tenant’s goods— (a) as security for or in payment of any amount owing by way of rent; or (b) for any other reason arising from the tenancy. (2) Seizing or disposing of any goods in contravention of subsection (1) is hereby declared to be an unlawful act.
Having considered the documentary evidence, and after hearing from the parties, my assessment is that the landlord did seize the tenants goods, in that when it took possession of the premises with the tenant goods insitu, that he was only willing to release those once the debt was paid. That is the only conclusion that can be reached from a text the landlord sent on 10 November 2023, where the landlord states to the tenant: Bring the for rent sign that you illegally removed back at 9:30am tomorrow when you have two hours maximum to remove and load your stuff and remove the car and big tyre. Obviously if we don’t see the money in the account, you will not have access. Full stop. Howard.
Plainly the landlord had seized the tenant goods, and unless he got the money owed, the goods were not to be released. My impression is that the landlord only changed his approach subsequently, and particularly after the tenant filed her own application with the Tribunal around the seizure of her goods.
Moving now onto discuss the claims from the parties.
In relation to the landlords claim for locksmith costs, this claim is dismissed. Section 40 of the RTA sets out the tenants responsibilities, and that includes that at the end of the tenancy the tenant must “return to the landlord all keys, and security or pass cards or other such devices, provided by the landlord for use of the tenant”. In this case the tenant has returned the garage door opener, but it seems the landlord had taken the locksmith during the ‘eviction’, so this is not a case where the tenant simply refused to hand back the keys. My impression is that the locks would have been changed one way or the other. Given the garage door remote was returned, I have no doubt that had the tenant been asked to hand over her keys, she would have done so. The fact that the landlord elected to changes the locks following a termination of the tenancy does not prove of itself that the tenant is liable for those costs.
In relation to the landlords claim for travels for the goods being stored, that is dismissed, as I have found the landlord has improperly dealt with the tenant goods, in that the landlord has seized those goods which he should not have done. It would therefore be wrong for the Tribunal to order compensation be paid by the landlord in relation to transporting of those unlawfully seized goods.
As it relates to the tenants claim, I have determined that claim should be dismissed also.
There is a claim for exemplary damages. While I consider the landlord has acted unlawfully in seizing the tenant goods, in order to make an order that exemplary damages be paid, I would need to consider the matters set out in section 109. Included in that is that I must find the landlord intentionally acted unlawfully, and I must also consider whether it would be just to make the order. In this case I am not persuaded that the landlord is likely to have intentionally set about acting unlawfully. Undoubtedly the landlords actions were misguided, but I don’t believe he intended to act unlawfully. I would also need to consider whether it would be just to make an exemplary damages order, and I find it would not. I accept that the landlord was doing what he thought was right, but that is in the context of the tenant breaching her obligations under the RTA, which required that on 9 November 2023 she vacate the premises, remove all her goods, and return possession of the premises to the landlord in a reasonably clean and tidy state.
There is finally the claim from the tenant for compensation for goods she states were missing. After hearing from the tenant, my impression is that she was not sure what items she had moved into storage, those items being moved out of the landlords storage. Even if that were not the case, the tenant has provided no evidence around ownership of the missing goods, receipts for them, or any independent assessment of market value. In short the tenant has not established what her loss would be.
I am further of the view that the tenant was not sure of what belonging had gone into storage, because at the end of the hearing the landlord noted that the tenant had left a BBQ and tyre at the premises, but those are not items the tenant reported during the hearing as not having been returned to her.
However I will make one order in relation to the tyre and BBQ left at the premises, it is sensible I do so in order to bring the dispute to an end. The Tribunal orders the tenant remove those items within two days, if she fails to do so, the landlord can dispose of them how he sees fit. The landlord has confirmed these goods are outside the premises, and the tenant has consent to go onto the grounds of the premises to uplift them.
Otherwise all claims are dismissed.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4746733. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

The tenant is ordered to remove the BBQ and large tyre from the premises no later than by 1:00pm on 23 December 2023. If the tenant fails to remove those items by that date and time, the landlord may dispose of them as he sees fit.
All other claims are dismissed.

Reasons

The Tribunal must consider an applications filed by both the landlord and tenant.
Both parties appeared at the hearing today.

BACKGROUND

For the purpose of this decision, the following is relevant. a. On 7 November 2023 the Tribunal issued a decision terminating the tenancy on the basis of significant rent arrears (4704329). Possession was ordered to return to the landlord at 11:59pm on Thursday 9 November. The tenant was not at that hearing, and later applied for a rehearing which was declined. b. The landlord attended the premises on 10 November. Somebody was present at the tenancy, who called the tenant who arrived about 20 minutes later. The landlord had a locksmith with him to change the locks. My impression is that the tenant gave the landlord possession of the premises, and the locks were changed. The tenant was able to take some goods with her at that time. c. The tenant removed most of the tenants goods, and put them in storage. d. There is a dispute between the parties as to whether the landlord had seized the goods, I will discuss that shortly. e. Both parties applied to the Tribunal, and following that the landlord returned the tenants goods, which the tenant has place in storage herself. f. A hearing was convened before the Tribunal in the North Shore District Courthouse on 21 December 2023. Both parties were in attendance. The landlord seek an order for costs around the ‘eviction’, and the tenant seeks orders in relation to goods alleged to be missing.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

TENANTS CASE

The tenant states that when the original order was issued by the Tribunal, the tenant received the email but without the order being attached. The tenant states that she thought the order would be emailed out to her, so it was not received until later.
The tenant said that the landlord was holding her goods as a security in order to pay the amount owed to the landlord, and that the landlord would not release the goods until she had paid the amount of the order. The tenant said that she made efforts to find the money to pay the landlord, but was not able to find the funds.
The tenant confirmed that she has more recently obtained most of her goods, which she has moved into her own storage facility.
The tenant states that a ladder was missing from the premises at the end of the tenancy which is owned by a company she works for. The tenant also says that some kitchenware is missing, but states she is not sure what else is missing because she has not had an opportunity to go through the goods in her storage. The tenant seeks an order in relation to missing goods.

LANDLORDS CASE

The landlords states that he, his wife and a friend went to the premises with a copy of the notice. Someone was there that he did not know, and the landlord told them they needed to leave the property given the earlier Tribunal order. The tenant was called and arrived about 20 minutes later. The landlord states he allowed the tenant to take some of the items, which the tenant then took before the locks were changed.
The landlord states that the tenancy was a difficult one with the tenant not paying rent or keeping to undertakings.
The landlord confirmed that he had moved the tenants goods out to another location, and then set about cleaning the premises. The landlord denies that he seized the tenants goods. When I referred to a text message on file that suggested otherwise, the landlord said that was sent in the heat of the moment.
The landlord states that after the tenant had filed her application, he sought advice from Tenancy Services which was conflicting, but that Tenancy Services said “we had to let her pick it up which was fine” meaning the tenant goods. My impression is that following that he set about making arrangements with the tenant to obtain her goods, but states that the tenant did not comply with agreements.
The landlord confirmed that he had found some items from the tenant in a draw, and confirmed they were in his car at the hearing. At the end of the hearing the parties agreed that the tenant would go with the landlord to his car to get those items. Further there is a large tyre and BBQ still at the house.

ANALYSIS

The tenancy was terminated by order of the Tribunal. The claims currently before the Tribunal relate to events following that termination, in fact events after the landlord took possession of the premises.
It is relevant to note that the tenancy was terminated by order of the Tribunal, and that order required that possession return to the landlord at 11:59pm on 9 November 2023. The tenant failed to comply with that lawful order. It is also relevant to note that the RTA requires that at the end of the tenancy, the tenant remove all her goods and return the premises to the landlord in a reasonably clean and tidy state. The tenant did not comply with that obligation either.
Ultimately the landlord attended the premises on 10 November, and I accept that the tenant voluntarily returned possession to the landlord at that time. While the tenant did take some of her goods, a large amount of goods was left behind.
I am not in a position to comment on what the landlord says he was advised by Tenancy Services as it relates to the tenants goods. I cannot know what Tenancy Services were told orally, so it is not clear to me what their advice was based on. Given what the landlord has described, I do however get the impression that Tenancy Services may have believed the goods had been abandoned.
There are provisions in the RTA that allow a landlord to dispose of abandoned goods at a tenancy, but there is no doubt that the goods in this case have not been abandoned. The tenant was in communication with the landlord, and it is plain she wanted her goods back. I have no doubt the goods were not abandoned.
Section 33 of the RTA prohibits a landlord from seizing tenant goods. That provision confirms: 33 Tenant’s goods not to be seized (1) The landlord shall not be entitled to seize or dispose of any of the tenant’s goods— (a) as security for or in payment of any amount owing by way of rent; or (b) for any other reason arising from the tenancy. (2) Seizing or disposing of any goods in contravention of subsection (1) is hereby declared to be an unlawful act.
Having considered the documentary evidence, and after hearing from the parties, my assessment is that the landlord did seize the tenants goods, in that when it took possession of the premises with the tenant goods insitu, that he was only willing to release those once the debt was paid. That is the only conclusion that can be reached from a text the landlord sent on 10 November 2023, where the landlord states to the tenant: Bring the for rent sign that you illegally removed back at 9:30am tomorrow when you have two hours maximum to remove and load your stuff and remove the car and big tyre. Obviously if we don’t see the money in the account, you will not have access. Full stop. Howard.
Plainly the landlord had seized the tenant goods, and unless he got the money owed, the goods were not to be released. My impression is that the landlord only changed his approach subsequently, and particularly after the tenant filed her own application with the Tribunal around the seizure of her goods.
Moving now onto discuss the claims from the parties.
In relation to the landlords claim for locksmith costs, this claim is dismissed. Section 40 of the RTA sets out the tenants responsibilities, and that includes that at the end of the tenancy the tenant must “return to the landlord all keys, and security or pass cards or other such devices, provided by the landlord for use of the tenant”. In this case the tenant has returned the garage door opener, but it seems the landlord had taken the locksmith during the ‘eviction’, so this is not a case where the tenant simply refused to hand back the keys. My impression is that the locks would have been changed one way or the other. Given the garage door remote was returned, I have no doubt that had the tenant been asked to hand over her keys, she would have done so. The fact that the landlord elected to changes the locks following a termination of the tenancy does not prove of itself that the tenant is liable for those costs.
In relation to the landlords claim for travels for the goods being stored, that is dismissed, as I have found the landlord has improperly dealt with the tenant goods, in that the landlord has seized those goods which he should not have done. It would therefore be wrong for the Tribunal to order compensation be paid by the landlord in relation to transporting of those unlawfully seized goods.
As it relates to the tenants claim, I have determined that claim should be dismissed also.
There is a claim for exemplary damages. While I consider the landlord has acted unlawfully in seizing the tenant goods, in order to make an order that exemplary damages be paid, I would need to consider the matters set out in section 109. Included in that is that I must find the landlord intentionally acted unlawfully, and I must also consider whether it would be just to make the order. In this case I am not persuaded that the landlord is likely to have intentionally set about acting unlawfully. Undoubtedly the landlords actions were misguided, but I don’t believe he intended to act unlawfully. I would also need to consider whether it would be just to make an exemplary damages order, and I find it would not. I accept that the landlord was doing what he thought was right, but that is in the context of the tenant breaching her obligations under the RTA, which required that on 9 November 2023 she vacate the premises, remove all her goods, and return possession of the premises to the landlord in a reasonably clean and tidy state.
There is finally the claim from the tenant for compensation for goods she states were missing. After hearing from the tenant, my impression is that she was not sure what items she had moved into storage, those items being moved out of the landlords storage. Even if that were not the case, the tenant has provided no evidence around ownership of the missing goods, receipts for them, or any independent assessment of market value. In short the tenant has not established what her loss would be.
I am further of the view that the tenant was not sure of what belonging had gone into storage, because at the end of the hearing the landlord noted that the tenant had left a BBQ and tyre at the premises, but those are not items the tenant reported during the hearing as not having been returned to her.
However I will make one order in relation to the tyre and BBQ left at the premises, it is sensible I do so in order to bring the dispute to an end. The Tribunal orders the tenant remove those items within two days, if she fails to do so, the landlord can dispose of them how he sees fit. The landlord has confirmed these goods are outside the premises, and the tenant has consent to go onto the grounds of the premises to uplift them.
Otherwise all claims are dismissed.

Tenancy Tribunal case 4746733 — Rent arrears at 20 Amherst Place, Albany, Auckland 0632

At a glance

Tenancy Tribunal case 4746733 — Rent arrears at 20 Amherst Place, Albany, Auckland 0632

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CASE

LANDLORDS CASE

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CASE

LANDLORDS CASE

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions