What was Tenancy Tribunal case 4757014 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal orders

How much money was awarded in case 4757014?

Cleaning: $400.00 awarded to landlord; Property Damage: $1,000.00 awarded to tenant; Property Damage: $500.00 awarded to landlord; Rent Arrears: $900.00 awarded to landlord

What type of tenancy dispute was case 4757014?

The primary dispute was Rent arrears. Related themes: Property damage, Cleanliness.

Where can I read the official tribunal order for case 4757014?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10439139-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4757014 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal orders

How much money was awarded in case 4757014?

Cleaning: $400.00 awarded to landlord; Property Damage: $1,000.00 awarded to tenant; Property Damage: $500.00 awarded to landlord; Rent Arrears: $900.00 awarded to landlord

What type of tenancy dispute was case 4757014?

The primary dispute was Rent arrears. Related themes: Property damage, Cleanliness.

Where can I read the official tribunal order for case 4757014?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10439139-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4757014 — Rent arrears

Claims and awards in Tenancy Tribunal application 4757014 — net $800.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 18 December 2023	$900.00		Rent arrears to 18 December 2023
Cleaning	$400.00		Cleaning
Damage	$500.00		Damage
Exemplary damages		$1,000.00	Exemplary damages
Total award	$1,800.00	$1,000.00
Net award	$800.00
Total payable by Tenant to Landlord	$800.00

Claims and awards in Tenancy Tribunal application 4757014 — net $800.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 18 December 2023	$900.00		Rent arrears to 18 December 2023
Cleaning	$400.00		Cleaning
Damage	$500.00		Damage
Exemplary damages		$1,000.00	Exemplary damages
Total award	$1,800.00	$1,000.00
Net award	$800.00
Total payable by Tenant to Landlord	$800.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord and the tenant’s names and identifying details.
[The tenant/s] must pay [The landlord/s] $800.00 from the bond, calculated as shown in the table below.
The Bond Centre is to pay $800 of the bond ([Bond number suppressed]) to [The landlord/s] immediately. The Bond Centre is to pay the balance of the bond of $1000 to [The tenant/s] immediately.

Reasons

Both parties attended the hearing.
This was a rental of short duration, commencing on 24 October 2023 and terminating on 4 December 2023. According to the landlord, the tenants gave two weeks notice of the termination of the tenancy. The landlord has applied for rent arrears in the sum of $900.
The landlord also applies for compensation for damage to the bottom of a door trim which he says was caused by the tenant’s air conditioning unit, located nearby where the damage occurred. He is seeking the cost of repair, which has not yet been undertaken.
He also claims that he incurred costs with cleaning and removing rubbish at the end of the tenancy. He claims for his consequential losses such as the cost of a building report and translation fees.
The tenants allege that the landlord wrongfully attempted to increase the rent within two weeks of the tenancy starting. They allege the landlord did not lodge the bond with the bond centre until after the tenancy ended. They allege that there was no written tenancy agreement provided and that the heat pump that came with the premises did not work because there was no remote provided. They also alleged that the landlord took photographs without their permission from the interior of the premises when the tenants allowed the landlord in to undertake repairs. Burden of proof
A party who brings a claim to the Tenancy Tribunal must prove, on the balance of probabilities (more probable than not), that their version of events took place. They must prove that the effects that they allege took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof, in particular where the tribunal only has one parties word against the other.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.” Relevant Background
A summary of the evidence given by the parties and submitted in writing is set out below. Not all material is included because a significant amount of material was filed.
The premises are a three bedroom, three bathroom house with a kitchen, laundry and living area.
The landlord used to live in the premises himself but he was moving out when the tenants came to see the property. It is his home. He had existing flatmates.
The area that the landlord wanted to tenant to the tenants was an upstairs bathroom, bedroom, living area and kitchen.
The rent was $450 per week inclusive of utilities. The landlord was separately renting out one of the other rooms in the house. The remaining bedroom was not occupied at the commencement of the tenancy because its occupant was overseas.
The parties discussed the tenant’s Tesla motor vehicle and where that would be charged. According to the landlord, he told the tenants that there was no charging port for electric vehicles and the tenant replied that he would charge it elsewhere. According to the tenant, he said that he would only sometimes charge it elsewhere.
According to the tenants, the landlord attempted to change the basis of rent payment after they took the tenancy by saying the rent would now be $430 per week but the tenants would have to pay all of their own utilities. It was for that reason that they moved out of the premises.
The parties also discussed and agreed on the tenant’s rabbits. According to the tenants, there was no discussion about the rabbits being kept in cages.
The landlord gave the tenants a document to sign headed House sharing application form. This was the form that the landlord had given other existing tenants at the premises when he had been living there. He believed that this was the correct documentation.
The tenants said that when they moved in, they noticed that the flooring from the living area into the kitchen felt wavy or spongy.
The tenants said that after they moved in, they could not find a remote for the heat pump. They sent a message to the landlord but claimed there was never any response. They therefore purchased an air conditioning unit which they located just beside the entry from the living area to the kitchen. The air conditioning unit’s condensation dropped down to a tray below which [The tenant/s], said that he emptied everyday “to the best of my memory”.
The tenants accepted that they could have done more cleaning at the end of the tenancy and that there was some rubbish left behind but they say no more than one hour work would have been involved with cleaning and rubbish removal.
The tenants are unhappy about the fact that the landlord took photographs of the interior of their premises when he came to fix a power issue. He was allowed into the premises at that time but not for the purposes of an inspection. At the relevant photographs were discussed during the hearing and the tenant took me to them. They show unclean areas of the premises, areas of rabbit droppings on the ground, straw on the floor and the like.
In summary, the landlord says that: a) The landlord produced a translation of a message from the tenant before the commencement of the tenancy with the tenant said he was wanting premises suitable to keep a “caged rabbit”. b) In relation to the remote, this has always been kept in a draw at the premises and has been there the entire time. He says that he did not respond to one message asking about the remote but that the tenants did not follow up with him and he assumed it was not an issue. c) The landlord says that the tenant has damaged the trim to the doorway, leading into the kitchen, just nearby where the tenant’s air conditioning unit was. The landlord produced good quality photos of the damages, which show that there appear to be some swelling in the timber and signs of water damage. Photos of the same area at the outset of the tenancy were also provided and these are harder to see, but appear to show the trim in better condition. d) According to the landlord, the flooring product is not fixed to the slab but floats over the slab. It is therefore meant to feel a bit “floaty”. He produced expert evidence from Auckland Building Surveying which addresses the tenant’s allegation that the damage to the door trim was pre-existing. The author of that report concluded that the portable air conditioner bought by the tenants would have emitted condensation directly onto the flooring and that the landlord had visited the premises on the day of the tenants departure and noticed that the flooring had water oozing out from between the joints around the location where the portable air conditioner had been. The author further noted that there had been no extreme weather events at that time. e) In relation to the rent, the landlord says that this never increased, and remained at $450 per week throughout. He accepted that there was discussion about changing the basis of rent calculation after he discovered the tenants charging the motor vehicle there several times. He also became concerned that the tenants were running a power cord from inside the property through an extension outside a window which the landlord said compromised his insurance and caused a power circuit issue. The landlord produced a translation of messages in relation to the rent increase, which occurred after he found out the tenants were charging the EV at the property. This shows the parties were in discussions about the rent reducing to $420 per week with the power cost for electric vehicle charging to be separate. f) The landlord produced photographs showing the premise were left unclean, with some rubbish left behind, at the end of the tenancy. Preliminary jurisdiction question.
This matter had an earlier case management conference but the question of jurisdiction was not determined at that time. At the beginning of the hearing, I explained to the parties that this was an issue with that would need to be determined first.
The preliminary question is whether or not the Tribunal has jurisdiction to hear the claim, by virtue of s 5(1)(n) of the Residential Tenancies Act 1986 (RTA).
Questions of jurisdiction are fundamental and must be decided before the Tribunal can go on to make any other findings in a case. Put simply, if there is no jurisdiction, then I cannot proceed to hear the case.
[The landlord/s] is the owner of the premises, but he does not live there. The fact that he has provided a document headed “house sharing application form” is not determinative of the nature of the arrangement. It is trite that the labels that parties give to their legal arrangements is not determinative of the substance of that transaction. The law and discussion
The RTA does not apply to premises that continue to be used, during the tenancy, principally as a place of residence by the landlord or owner of the premises, or by any member of the landlord’s or owner’s family. (See s 5(1)(n) of the Act).
The issue that I must determine is whether the relationship was a flat sharing agreement of premises shared with the landlord. If so, then the exclusion in s 5(1)(n) will apply and the RTA will not apply.
There are a number of previous cases that have come before the Tenancy Tribunal and the Courts where the question of whether an agreement is a flat sharing agreement or not has been considered. In 2021, the issue was considered in the High Court in Harding v Caroto, 1 where a self-contained unit within a larger home occupied by the landlord was found to be separate residential premises.
In Whitelock v McConway, 2 the subject premises were a sleepout, contained in a building which also contained the family shower and laundry room. The facilities within the sleepout where the tenant lived were limited in that there was no kitchen or sitting room. The tenant was expected to share the shower and laundry with the 1 CIV-2021-404-000378 [2021] NZHC 1265. The High Court confirmed here that there can be “premises” within premises. 2 DC Christchurch, C IV 2010 0092030, family. It was found that the exclusion in s 5(1)(n) applied and so the Tribunal did not have jurisdiction to hear the claim. In that case that, clearly there was a sharing of facilities and the tenant’s area was not fully self-contained.
In Watson v Watson, 3 the exclusion in s 5(1)(n) did not apply, in a case where the premises were exclusive to the tenant and fully separate from the landlord’s premises.
Likewise in Dempsey v Barnett 4 the exclusion did not apply. The room occupied by the tenant was furnished with a couch, drapes, a table, bed, drawers, a cupboard, crockery and some linen. The room had a power supply which the tenant used to heat meals and a microwave oven. The room had a fridge and a cooktop. There was no water supply to the room and the tenant had to wash dishes in the kitchen of the main house. He was given a key to the back door to enable him to use the toilet and shower in the house. At times he used the lounge in the house but only did so when invited in by the landlord and, apart from the water supply and toilet facilities, the tenant was self-contained.
The Tribunal has found that the exclusion in s 5(1)(n) did not apply in: a) Nie v Zhao, 5 where the premises were a separate area located beneath the landlord’s residence containing a bedroom, a makeshift kitchen, living space and a separate entry. A door from a corridor leading upstairs was locked preventing the tenant’s access upstairs. Other than using the laundry and two rooms downstairs for storage, the landlord did not share the house with the tenant. b) Bailes v Nalini, 6 where the tenant exclusively occupied a cabin located at the back of the main residential premises. The cabin was a small freestanding bedsit arrangement with a lounge below and a bedroom above and included a hot plate but no bathroom or toilet facilities. The tenant was able to enter the main house to use the bathroom and toilet. c) Zhang v Gao 7 where the landlord rented the upstairs level of two storey house and the tenant exclusively occupied the downstairs level. All living, cooking, sleeping and bathing arrangements were separate. d) McCaughan v Nasseri, 8 where there was a downstairs self-contained separate unit within an existing home.
Consistent themes running through the foregoing cases are: 3 DC Christchurch COV 2010 0092030, 14 September 2010, at[14] 4 DC Auckland, TT 790/93, 12 November 2003 5 [2020] NZTT North Shore 4277894 6 [2020] NZ TT North Shore 4261603, 4268721 7 [2021] NZTT North Shore 4298016, 4297675 8 [2021] NZTT Waitakere 4209883 • the extent of any sharing of living facilities (such as cooking, bathroom, sitting room and laundry) • the extent of any free and unimpeded access by the tenant to premises occupied mainly by the landlord • the nature of the tenant’s area and whether it is fully or partly self-contained and whether it is exclusive.
I find that the evidence establishes that this was not a shared flatting situation. The landlord does not live at the premises. I can understand that the landlord may have been confused as to the correct nature of the agreement, since he had just been living at the property and when he was living there, it would have been correct to describe the relationship with his flatmates as such. But once he moved out he made himself a landlord. The provisions of the Residential Tenancy Act 1986 therefore applied to this agreement.

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)I(ii)-(v) Residential Tenancies Act 1986.
The tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish.
The photographs provided did not evidence a significant amount of cleaning and not at the level claimed by the landlord. But I am however satisfied that rubbish removal and some cleaning was required. During the hearing, I reminded the parties that the tenant’s obligation is only to return the premises reasonably clean and tidy, and not to the same “spic and span” condition to be expected of a new tenant moving into the property.
Having reviewed the evidence, I find the tenants must pay the landlord $400.00 for cleaning and rubbish removal.

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.
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.
I accept the evidence of the landlord and in particular the landlord’s expert evidence which corroborates the fact that damage has been caused to the trim of the doorway leading into the kitchen and I find that more probably than not that damage was caused by water seeping out from under the air conditioning unit located just nearby the doorway. It is really the only possible cause.
I therefore find that this damage, which has been caused during the tenancy by the tenants, is more than fair wear and tear, and the tenants have not disproved liability for the damage.
In fixing any amount in favour of the landlord, I note that the remedial work has not yet been undertaken. No actual monetary loss has been incurred yet the landlord has clearly suffered some loss of amenity. In fixing an amount, even if the remedial works had been undertaken, as I explained to the parties during the hearing, I would have had to have taken into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenants not breached their obligations, and should not be better or worse off. In calculating depreciation, I would have to have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. This is a 30 year old house.
I allow the landlord $500 by way of compensation for the damage to the doorway trim which I consider an appropriate compensation by way of loss of amenity and reduced life span of this aspect of the landlord’s property. Rent
As this is a residential tenancy, the tenants are also required to comply with the RTA. They were required to give 28 days notice. It does not matter that they moved out earlier and handed their keys back. Their obligation was to pay rent for that full 28 days. I am satisfied that they must pay $900 to the landlord.
I do not accept that the landlord wrongfully attempted to change the basis of rent. There is evidence of discussion on this but they see to have invited that discussion by their use of the internal power point to charge the Tesla.
I find that the landlord had a better of recollection of the discussions that took place at the beginning of the tenancy. For instance, the tenants said that there was no mention of the rabbits having to be in cages, yet that the word “caged” is referred to in one of the messages I note above. I find that more probably than not, the tenants did agree to charge their EV elsewhere and not at the premises. It was therefore understandable that the landlord would want to discuss changing the basis of utility payment. Breach of quiet enjoyment
The tenants claimed that the landlord interfered with their quiet enjoyment by taking photographs of their personal property when he attended at the property for repairs.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means “to trouble, worry or distress” or “to wear out, tire, or exhaust” and “indicates a particular pattern of behaviour directed towards another person”. MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
I find that the landlord has entered the property on some occasions but that the tenants have allowed him in. They have not given their permission to his photography on one of these occasions but he has only taken photographs showing the condition of the premises and not of deeply personal items.
I am not satisfied that the landlords actions amount to “harassment”, as that phrase is defined above.
This aspect of the tenant’s claim is dismissed.
Likewise, I dismiss the tenants claims that the landlord has entered the premises without consent or notice. There was inadequate evidence provided to discharge the burden of proof, in particular in the light of the tenant’s indication that she allowed the landlord to enter the premises. Lack of heating
The tenants claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenants submit that the landlord has failed to comply with the HHS heating standard.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025.
The heating standard does not apply to this tenancy, as is outlined above.
However, in any event, this issue resolves around the lack of a remote for the heat pump. There was no contention that there was not a heat pump or adequate source of heating, simply that the tenants could not use it.
Having heard the evidence I am not satisfied the tenants have discharged the burden of proof here. They say there was no remote provided and the landlord says there was one there all along. Where there is a factual contest, it is over to the party asserting the claim to provide adequate evidence corroborating their version of events. Here, the evidence presented is inadequate to prove that there was no remote supplied at the outset of the tenancy.
This aspect of the claim is therefore dismissed. The bond
The bond was never lodged at the Bond Centre. I find this to be an unlawful act.
Section 109 of the RTA provides that where a party to a tenancy agreement has committed an unlawful act, the Tribunal may award exemplary damages (in the nature of a penalty) where it is satisfied that: (i) the unlawful act was committed intentionally and (ii) having regard to the criteria set out in section 109(3) RTA such an award would be "just".
The landlord was unaware that the bond needed to be lodged. He thought this was a flat sharing agreement. He has however since the tenancy ended deposited the bond.
I consider this an appropriate case to award $500 exemplary damages for failure to lodge the bond. The bond is the tenant’s money and must be lodged with the Bond Centre. Landlords must take their obligations in this regard seriously and the landlord was not entitled to reach the decision to not comply with his legal obligations. No written tenancy agreement
There is no tenancy agreement signed in this case as would usually be expected with a residential tenancy, contained all the required information. S 13 of the RTA requires that there be a written tenancy agreement, containing various information (s 13A)
I find that the landlord therefore committed an unlawful act. The landlord did not supply a proper agreement because he believed this to be a genuine flat sharing arrangement. It is his obligation, however, to inform himself of his obligations as a landlord. Landlord’s obligations under the RTA are important and landlords must comply with them. I therefore award the tenants $500 by way of exemplary damages.
Both parties have had a measure of success and so I do not refund the filing fee. Given both parties’ success, I order name suppression of the parties’ names and identifying details.
I dismiss the landlord’s claims for the cost of the translation costs and the building report and I find that loss to be too remote in this case.

Tenancy Tribunal case 4757014 — Rent arrears

At a glance

Tenancy Tribunal case 4757014 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions