What was Tenancy Tribunal case 4761737 about?

The tribunal order states: The Bond Centre is to pay the bond of $780.00 ([Bond number suppressed]) to

How much money was awarded in case 4761737?

Cleaning: $100.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Carpet Main Bedroom: $490.00 awarded to landlord; Carpet Other Bedroom: $490.00 awarded to landlord; Kitchen Vinyl: $490.00 awarded to landlord; Replace Lock Back Door: $47.76 awarded to landlord; Water Rates: $116.83 awarded to landlord

What type of tenancy dispute was case 4761737?

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

Where can I read the official tribunal order for case 4761737?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10299716-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4761737 about?

The tribunal order states: The Bond Centre is to pay the bond of $780.00 ([Bond number suppressed]) to

How much money was awarded in case 4761737?

Cleaning: $100.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Carpet Main Bedroom: $490.00 awarded to landlord; Carpet Other Bedroom: $490.00 awarded to landlord; Kitchen Vinyl: $490.00 awarded to landlord; Replace Lock Back Door: $47.76 awarded to landlord; Water Rates: $116.83 awarded to landlord

What type of tenancy dispute was case 4761737?

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

Where can I read the official tribunal order for case 4761737?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10299716-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4761737 — Property damage

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4761737 — net $975.03 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: carpet main bedroom	$490.00	Repairs: carpet main bedroom
Repairs: carpet other bedroom	$490.00	Repairs: carpet other bedroom
Repairs: vinyl flooring kitchen	$490.00	Repairs: vinyl flooring kitchen
Cleaning, including carpet	$100.00	Cleaning, including carpet
Replace lock back door	$47.76	Replace lock back door
Water rates: 28/06/23 - 04/12/23	$116.83	Water rates: 28/06/23 - 04/12/23
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$975.03
Total payable by Tenant to Landlord	$975.03

Both parties attended the hearing.

The tenancy commenced on 14 June 2021 and was periodic. The landlord gave the tenant notice to terminate the tenancy on 03 December 2023, after which the landlord moved into the property. On 08 January 2024, the landlord filed a claim with the Tribunal. On 25 January 2024, the tenant filed a counterclaim. The tenant’s application does not raise any substantive claims but is a defence to the claims made against them.

The landlord is claiming outstanding water rates. The landlord is also claiming that the tenant failed to leave the property, including the carpet, in a reasonably clean condition, and is liable for damage to the carpet in two bedrooms, the lounge, the vinyl flooring in the kitchen, laundry, the curtains in the bedrooms and lounge, and the lock on the back door.

The landlord is seeking outstanding water rates of $193.81 for the period 28 June 2023 to 04 December 2023, $300.00 for general cleaning, which includes carpet cleaning, five $500.00 excesses for the damage to the carpet and vinyl flooring, $396.00 to replace the curtains, and $47.76 to replace the lock.

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

Under section 39(3) of the Act, tenants are responsible for outgoings that are exclusively attributable to their occupation; they are not liable for any charges applicable whether the property is occupied or not, such as fixed charges. In this case, the landlord’s claim includes fixed line water charges of $77.08. I deduct these fixed charges from the amount claimed, and award compensation for usage only, which for the period is $116. 83.

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 and remove all rubbish. See section 40(1)(e)(ii)-(v) the Act.

The Act does not require the premises to be provided or returned in a spotless or an immaculate condition. The property should be returned at least in the same state of cleanliness it was at the commencement. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. The Tribunal must evaluate the evidence available, in particular tenancy inspection reports, and photographs showing the property at the commencement, and end of the tenancy.

The landlord did not anticipate having to produce evidence, stating that the tenant had previously accepted the claim. The onus is on the landlord to satisfy the Tribunal that the tenant has failed to meet their obligations. In the Tribunal, this involves producing sufficient evidence. In this case the landlord has produced a photograph of the inside of the log burner showing it full of rubbish, likely combustible and able to be burnt, photographs of the carpet in three rooms, a letter from a carpet cleaner, a quote for $300.00 for general cleaning, which includes the carpet , and a letter the landlord sent to the tenant seeking to resolve the matter. Having considered the evidence, I am not satisfied that the full amount claimed is justified. I am satisfied that the tenant has failed to leave the inside of the log burner and the carpet in the two bedrooms in a reasonably clean condition. On that basis I award the landlord a third of what is claimed, $100.00.

Is the tenant responsible for the damage to the premises?

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. Curtains

The landlord has produced photographs of three sets curtains in the two bedrooms and that lounge taken at the end of the tenancy. These photographs show what appear to be small holes in each set of curtains. The landlord claims the thermal backing of the curtains has holes, which are visible when the curtains are closed as light can be seen through them. The pre tenancy inspection report, which has been signed by both parties, does not record any damage to the curtains, which the landlord states were new in 2019. The landlord claims the damage has occurred during the tenancy and is more than fair wear and tear. The landlord has produced an invoice to replace the three sets for $129.00 per set, a totalling $396.00.

The tenant states that at the commencement of the tenancy, the curtains were closed, making the holes detectable. The landlord accepts that the curtains had been closed but states that the matter was never raised by the tenant during the tenancy. The tenant states that the holes appear from the photographs to only visible when they are closed, and light is coming from the outside. The tenant states that as they did not regularly the curtains in the daytime, they had not previously detected the holes.

In this case, I am not satisfied that the damage occurred during the tenancy. Based on the evidence, I cannot rule out the possibility that the holes were present at the commencement of the tenancy but, as the curtains were open, went unnoticed. Considering The nature of the damage, the smallness of the holes and their seemingly random placement it is possible that the curtains may have had an inherent defect.

The claim that the tenant is liable for damage to the curtain is dismissed. Carpet and vinyl flooring.

The landlord has produced photographs of the carpet in the two bedrooms and the lounge, and the vinyl flooring in the kitchen and the laundry taken at the end of the tenancy. The photographs of the bedrooms show large areas of staining. In the lounge there are what appear to be four small burn marks in front of the log burner. The photograph of the vinyl flooring in the kitchen shows a gouge of approximately three centimetres in diameter. In the laundry there is a circular yellowish stain also about three centimetres in diameter. The landlord states that the damage is visible and easily detectable. The pre tenancy inspection report does not record any damage to the carpet or vinyl flooring. The landlord states that the carpet cleaner was unable to remove the stains. In the letter produced, the cleaner expresses the view that the stains are likely urine or caused by a liquid. The landlord made an insurance claim that was accepted. I was deemed not viable to repair the damage. The assessors report shows that actual cost of replacement in each room affected, is greater that the landlord’s insurance excess of $500.00 per claim.

The tenant has no explanation for the staining in the two bedrooms but denies that it was caused by urine. The tenant states that the mark in front of the fire were caused when hot material made its way from the fire box onto the carpet in front. The tenant states that it only happened the once and that they immediately placed a rug in front of the fire to avoid a repeat. The landlord states that the tenant did not report the matter during the tenancy and that at each inspection they noted a rug in front of the fire. There is no fire guard or screen provided by the landlord. Regarding the damage to the kitchen flooring, the tenant states that it had occurred near where they had placed a heavy China cabinet, suggesting the cabinets legs likely caused the gouge. The tenant states that the stain in the laundry is consistent with having been caused by one of the feet of their washing machine, and on that basis should be seen as fair wear and tear. The landlord denies that the stain is near where the washing machine was situated.

I am satisfied that the damage to the carpet in the two bedrooms has occurred during the tenancy and that it is more than fair wear and tear. The tenant has not disproved liability. I am not satisfied that the damage to the carpet in front of the fireplace has necessarily the result of a careless or intentional act by the tenant. Despite due care hot material can sometimes spill out from a fire. It may be prudent for a landlord to provide the tenant with a fire guard or mesh screen to avoid this occurring. The claim for the carpet in front of the fire is declined. I am satisfied that the damage to the vinyl flooring in the kitchen is more than fair wear and tear and likely the result of carelessness when moving the cabinet. On the evidence produced I cannot discount the tenant’s evidence that the yellow stain in the laundry has not been caused by the feet of the washing machine, which I accept is fair wear and tear. On this basis I decline the claim for the laundry floor.

The carpet and the vinyl flooring were new in 2019. Carpet in tenanted properties has a useful life span of 10 -12 years, vinyl flooring a useful life span of around 10 years. Taking this into account I deduct the excesses awarded each by 5%. Accordingly, I award $490.00 for each carpet in the two bedrooms and the flooring in the kitchen. Lock to back door

The landlord states that the entire lock to the back door was missing at the end of the tenancy. The pre tenancy checklist records that the lock was “tight.” The landlord states that during an inspection they had sprayed some lubricant on the lock. The tenant states that they were unaware that the landlord had done so as the lock remained tight. The tenant states that while it was inconvenient, they did not consider it necessary to raise it with the landlord. The tenant states that shortly before the end of the tenancy, their key had snapped off in the lock. They then removed the entire lock to see if it could be fixed. The lock could not be fixed and was not returned to the property. Had the tenant advised the landlord or left the broken key in the lock in situ I would have declined the claim. However, they did not inform the landlord. By removing the lock, the tenant hindered the landlord’s ability to investigate or repair the lock. I therefore find that the tenant is liable for the missing lock and award the amount sought to replace it. I make no deduction for betterment or depreciation. Costs

Because Diane Mildred Robinson has substantially succeeded with the claim I have reimbursed the filing fee. 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.

As stated, the tenant’s application did not contain any substantive claim. Out of the claims made by the landlord the tenant has successfully defended half. Consequently, I consider the tenant has been substantially successful. I order suppression of the tenant’s name and the address of the property. The landlord does not seek name suppression.

Reasons

Claims and awards in Tenancy Tribunal application 4761737 — net $975.03 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: carpet main bedroom	$490.00	Repairs: carpet main bedroom
Repairs: carpet other bedroom	$490.00	Repairs: carpet other bedroom
Repairs: vinyl flooring kitchen	$490.00	Repairs: vinyl flooring kitchen
Cleaning, including carpet	$100.00	Cleaning, including carpet
Replace lock back door	$47.76	Replace lock back door
Water rates: 28/06/23 - 04/12/23	$116.83	Water rates: 28/06/23 - 04/12/23
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$975.03
Total payable by Tenant to Landlord	$975.03

Both parties attended the hearing.

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 and remove all rubbish. See section 40(1)(e)(ii)-(v) the Act.

Is the tenant responsible for the damage to the premises?

The claim that the tenant is liable for damage to the curtain is dismissed. Carpet and vinyl flooring.

Because Diane Mildred Robinson has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression

Tenancy Tribunal case 4761737 — Property damage

At a glance

Tenancy Tribunal case 4761737 — Property damage

At a glance

Award balance

Claims & awards

Dismissed claims

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

Dismissed claims

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