What was the outcome of Tenancy Tribunal case 4790779?

The tribunal order states: Isabelle Neelam Prakash to pay Investment Portfolio Management Limited

How much money was awarded in case 4790779?

Filing Fee: $20.44 awarded to landlord; Power Bills: $155.87 awarded to landlord; Rent Arrears: $942.86 awarded to landlord

What type of tenancy dispute was case 4790779?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4790779?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10442268-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4790779?

The tribunal order states: Isabelle Neelam Prakash to pay Investment Portfolio Management Limited

How much money was awarded in case 4790779?

Filing Fee: $20.44 awarded to landlord; Power Bills: $155.87 awarded to landlord; Rent Arrears: $942.86 awarded to landlord

What type of tenancy dispute was case 4790779?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4790779?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10442268-Tenancy_Tribunal_Order.pdf.

Unit/Flat 405B, 8 Lakewood Court, Manukau, Auckland Tenancy Tribunal Case 4790779 — Rent arrears

Claims and awards in Tenancy Tribunal application 4790779 — net $1,119.17 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$942.86	Rent arrears
Power bills	$155.87	Power bills
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,119.17
Bond	$1,560.00
Total payable by Tenant to Landlord	$1,119.17

Order

Isabelle Neelam Prakash to pay Investment Portfolio Management Limited Partnership as Agent for Makajak Limited $1,119.17 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,560.00 (6452797-003) immediately apportioned as follows: Investment Portfolio Management Limited Partnership as Agent for Makajak Limited: $1,119.17 Isabelle Neelam Prakash: $440.83
The landlords claim for damages, cleaning and replacement of the fridge are dismissed.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Background:
This tenancy commenced on 6 April 2022 and was a fixed term tenancy. After the initial fixed term, the tenancy was fixed for a further one year. The fixed term tenancy was to end in April 2024.
On 14 November 2023, the landlord sent an email to the tenant advising that she had to vacate the property on 12 December 2023 to allow access for repairs. Attached to the email was a notice from the Body Corporation (Body Corp) stating that the Notice to Vacate was issued under s80(1) (a) of the Unit Titles Act 2010.
The Notice gave the tenant 28 days’ notice to vacate.
The Body Corp stated in its Notice that the whole apartment building had suffered significant damage in a flooding event in November 2021. Under s138 of the Unit Titles Act 2010 the Body Corp has a duty to repair the damage.
This is an eleven-story apartment building. I assume from comments made by the landlord at the hearing that repairs had been carried out on level 5- 11. The remaining repairs were to levels 1- 4 of the building. The tenant’s apartment was on level 4.
The landlord stated that the Notice was simply to vacate and not to terminate the tenancy. However, the tenant was given no notice of the period of time she would need to be away from the apartment. It is now 7 months after the tenant left her apartment and the work has not been completed.
I do not find that this was a Notice to Vacate. This was effectively termination of a fixed term tenancy.
The landlord had known that there were extensive repairs to be carried out on the apartment building which would require a tenant to have to leave for a considerable period of time.
Yet the landlord chose to enter into a fixed term tenancy with the tenant rather than a periodic tenancy. Furthermore, despite having knowledge that these repairs were needed and that the tenant would have to vacate her apartment, the landlord did not tell the tenant this. The first the tenant knew that she had to vacate for repairs was the 14 November 2023.
I questioned the landlord about the notice they received from the Body Corp regarding the tenants need to vacate her apartment for repairs. The landlord stated that they only had notice given the day before they advised the tenant.
The tenant gave evidence of the impact the 28-day notice had on her. She became homeless for a month, sleeping in her car for nights on end and staying with friends. The tenant was clearly distressed about the experience and the unfairness as she saw it of losing her fixed term tenancy at Christmas time.
Unfortunately, I do not have an application from the tenant regarding what on the face of it appears to me to be an unlawful termination of her fixed term tenancy.
The landlord expressed the view that what they were doing, issuing 28-day notices to vacate a fixed term tenancy, must be legal as no one else has complained about it.
For completeness section 2 of the RTA defines a fixed term tenancy as a tenancy for a fixed term, but except for s58(1), does not include a tenancy that is terminable by Notice. (s58(1) refers to a mortgagee or other person becoming entitled, (as against the landlord) to possession. S58 (1) is not applicable here.
A tenancy is defined in s2 of the RTA in relation to any residential premises as the right to occupy the premises in consideration for rent.
By provided a mandatory Notice to Vacate the premises, the landlord cannot be suggesting that they have not effectively terminated the tenancy, as the tenant has no right to occupy it.
Section 50 of the RTA sets out the circumstances when a fixed term tenancy can be terminated, which is on expiry of the fixed term, for physical assaults by the tenant, where premises are unlawful residential premises, destruction of the premises or where the premises becomes uninhabitable.
It seems incomprehensible that the Body Corp could not have notified the landlord earlier of the need to vacate within 28 days, given the extent of the renovations being carried out and the logistics involved.

How much is owed for rent and power bill?

The tenancy ended on 12 December 2023. The landlord provided rent records and power invoices which prove the amount owing at the end of the tenancy. The rent arrears were $942.86 and power bills were $155.87.
I am satisfied that the landlord has proven their claim for rent arrears and power bills.

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)(e)(ii) -(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1) (ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlord claims that the tenant did not leave the premises reasonably clean and tidy. The landlord provided an exit report and photos dated 13 December 2023 which show some areas were the premises was not clean. However, the tenant also had photos that show a reasonably clean and tidy property.
The tenant advised that the landlord allowed her to go back after the exit report had been completed to finish the cleaning. The tenant got the key that had been left in reception by the landlord, to allow her to enter the apartment to clean.
The tenants’ photos were taken after the landlords. The landlord accepts that the tenants’ photos show the property to be cleaner than the earlier exit inspection photos.
The landlord cannot refute that tenants claim and supporting evidence that she had cleaned the property to a reasonable clean and tidy standard.
I am dismissing the landlord claim for cleaning as they have not proven their claim.

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.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA 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) RTA.
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) RTA. 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) 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.
The landlord claims the tenant caused the following damage during the tenancy: -Damage to the paintwork on one wall -Dent to a fridge door
The tenant did say that she had caused some damage to the paintwork but had sanded it down and it would only require a bit of paint. The landlord was seeking $690.00 for the wall to be repainted.
Furthermore, the tenant says that the fridge was already damaged when she took over the tenancy and she had told her property manager this. The property managers who attended the hearing were not the manager that dealt with the tenant. The landlord was seeking to replace the fridge because of a dent on the door and sought $468.05 for the replacement cost.
However, the landlord has not had the work done and has only offered “quotes” for the paint work to be carried out and replacement fridge.
I explained to the landlord that I can not award costs for damages where the work has not been carried out as the landlord has not incur the cost of the repair and fridge replacement.
The landlord claimed that I was biased and unfair as they had presented the claims to this “mediation” and therefore the claims should remain active until they have carried out the work.
I pointed out to the landlord that this was an actual Tribunal hearing and not a mediation and that this was the day that the matter was to be heard and determined. The landlord has not incurred loss, and so I am dismissing the claim for the fridge and paint work.
It is the applicant that bears the onus of proof in a Tribunal hearing not the other party.
It is disrespectful for the landlord to accuse me of being unfair and biased when I am asked to determine their claims, and they have not provided the proof to establish their claims. The only course open to me is to dismiss their claim.
I am also concerned that as there are extensive repairs and renovations being undertaken by the Body Corp to the whole building, that the landlord would not be required to carry out the repainting at a cost to them, as it would form part of the Body Corp work.
The bond is to be apportioned according to the schedule listed above.
Because Investment Portfolio Management Limited Partnership as Agent for Makajak Limited has substantially succeeded with the claim I have reimbursed the filing fee.

Claims and awards in Tenancy Tribunal application 4790779 — net $1,119.17 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$942.86	Rent arrears
Power bills	$155.87	Power bills
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,119.17
Bond	$1,560.00
Total payable by Tenant to Landlord	$1,119.17

Order

Isabelle Neelam Prakash to pay Investment Portfolio Management Limited Partnership as Agent for Makajak Limited $1,119.17 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,560.00 (6452797-003) immediately apportioned as follows: Investment Portfolio Management Limited Partnership as Agent for Makajak Limited: $1,119.17 Isabelle Neelam Prakash: $440.83
The landlords claim for damages, cleaning and replacement of the fridge are dismissed.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Background:
This tenancy commenced on 6 April 2022 and was a fixed term tenancy. After the initial fixed term, the tenancy was fixed for a further one year. The fixed term tenancy was to end in April 2024.
On 14 November 2023, the landlord sent an email to the tenant advising that she had to vacate the property on 12 December 2023 to allow access for repairs. Attached to the email was a notice from the Body Corporation (Body Corp) stating that the Notice to Vacate was issued under s80(1) (a) of the Unit Titles Act 2010.
The Notice gave the tenant 28 days’ notice to vacate.
The Body Corp stated in its Notice that the whole apartment building had suffered significant damage in a flooding event in November 2021. Under s138 of the Unit Titles Act 2010 the Body Corp has a duty to repair the damage.
This is an eleven-story apartment building. I assume from comments made by the landlord at the hearing that repairs had been carried out on level 5- 11. The remaining repairs were to levels 1- 4 of the building. The tenant’s apartment was on level 4.
The landlord stated that the Notice was simply to vacate and not to terminate the tenancy. However, the tenant was given no notice of the period of time she would need to be away from the apartment. It is now 7 months after the tenant left her apartment and the work has not been completed.
I do not find that this was a Notice to Vacate. This was effectively termination of a fixed term tenancy.
The landlord had known that there were extensive repairs to be carried out on the apartment building which would require a tenant to have to leave for a considerable period of time.
Yet the landlord chose to enter into a fixed term tenancy with the tenant rather than a periodic tenancy. Furthermore, despite having knowledge that these repairs were needed and that the tenant would have to vacate her apartment, the landlord did not tell the tenant this. The first the tenant knew that she had to vacate for repairs was the 14 November 2023.
I questioned the landlord about the notice they received from the Body Corp regarding the tenants need to vacate her apartment for repairs. The landlord stated that they only had notice given the day before they advised the tenant.
The tenant gave evidence of the impact the 28-day notice had on her. She became homeless for a month, sleeping in her car for nights on end and staying with friends. The tenant was clearly distressed about the experience and the unfairness as she saw it of losing her fixed term tenancy at Christmas time.
Unfortunately, I do not have an application from the tenant regarding what on the face of it appears to me to be an unlawful termination of her fixed term tenancy.
The landlord expressed the view that what they were doing, issuing 28-day notices to vacate a fixed term tenancy, must be legal as no one else has complained about it.
For completeness section 2 of the RTA defines a fixed term tenancy as a tenancy for a fixed term, but except for s58(1), does not include a tenancy that is terminable by Notice. (s58(1) refers to a mortgagee or other person becoming entitled, (as against the landlord) to possession. S58 (1) is not applicable here.
A tenancy is defined in s2 of the RTA in relation to any residential premises as the right to occupy the premises in consideration for rent.
By provided a mandatory Notice to Vacate the premises, the landlord cannot be suggesting that they have not effectively terminated the tenancy, as the tenant has no right to occupy it.
Section 50 of the RTA sets out the circumstances when a fixed term tenancy can be terminated, which is on expiry of the fixed term, for physical assaults by the tenant, where premises are unlawful residential premises, destruction of the premises or where the premises becomes uninhabitable.
It seems incomprehensible that the Body Corp could not have notified the landlord earlier of the need to vacate within 28 days, given the extent of the renovations being carried out and the logistics involved.

How much is owed for rent and power bill?

The tenancy ended on 12 December 2023. The landlord provided rent records and power invoices which prove the amount owing at the end of the tenancy. The rent arrears were $942.86 and power bills were $155.87.
I am satisfied that the landlord has proven their claim for rent arrears and power bills.

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)(e)(ii) -(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1) (ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlord claims that the tenant did not leave the premises reasonably clean and tidy. The landlord provided an exit report and photos dated 13 December 2023 which show some areas were the premises was not clean. However, the tenant also had photos that show a reasonably clean and tidy property.
The tenant advised that the landlord allowed her to go back after the exit report had been completed to finish the cleaning. The tenant got the key that had been left in reception by the landlord, to allow her to enter the apartment to clean.
The tenants’ photos were taken after the landlords. The landlord accepts that the tenants’ photos show the property to be cleaner than the earlier exit inspection photos.
The landlord cannot refute that tenants claim and supporting evidence that she had cleaned the property to a reasonable clean and tidy standard.
I am dismissing the landlord claim for cleaning as they have not proven their claim.

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.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA 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) RTA.
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) RTA. 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) 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.
The landlord claims the tenant caused the following damage during the tenancy: -Damage to the paintwork on one wall -Dent to a fridge door
The tenant did say that she had caused some damage to the paintwork but had sanded it down and it would only require a bit of paint. The landlord was seeking $690.00 for the wall to be repainted.
Furthermore, the tenant says that the fridge was already damaged when she took over the tenancy and she had told her property manager this. The property managers who attended the hearing were not the manager that dealt with the tenant. The landlord was seeking to replace the fridge because of a dent on the door and sought $468.05 for the replacement cost.
However, the landlord has not had the work done and has only offered “quotes” for the paint work to be carried out and replacement fridge.
I explained to the landlord that I can not award costs for damages where the work has not been carried out as the landlord has not incur the cost of the repair and fridge replacement.
The landlord claimed that I was biased and unfair as they had presented the claims to this “mediation” and therefore the claims should remain active until they have carried out the work.
I pointed out to the landlord that this was an actual Tribunal hearing and not a mediation and that this was the day that the matter was to be heard and determined. The landlord has not incurred loss, and so I am dismissing the claim for the fridge and paint work.
It is the applicant that bears the onus of proof in a Tribunal hearing not the other party.
It is disrespectful for the landlord to accuse me of being unfair and biased when I am asked to determine their claims, and they have not provided the proof to establish their claims. The only course open to me is to dismiss their claim.
I am also concerned that as there are extensive repairs and renovations being undertaken by the Body Corp to the whole building, that the landlord would not be required to carry out the repainting at a cost to them, as it would form part of the Body Corp work.
The bond is to be apportioned according to the schedule listed above.
Because Investment Portfolio Management Limited Partnership as Agent for Makajak Limited has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4790779 — Rent arrears at Unit/Flat 405B, 8 Lakewood Court, Manukau, Auckland

At a glance

Tenancy Tribunal case 4790779 — Rent arrears at Unit/Flat 405B, 8 Lakewood Court, Manukau, Auckland

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent and power bill?

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

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent and power bill?

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

Property management

Frequently asked questions