What was Tenancy Tribunal case 4799558 about?

The tribunal order states: Justin Reilly and Jessie Reilly must pay Summit Property Management Limited

How much money was awarded in case 4799558?

Compensation: Failure to maintain –…: $500.00 awarded to landlord; Property Damage: $500.00 awarded to tenant; Rent Arrears: $992.14 awarded to landlord; Bedroom Floor – Excess: $550.00 awarded to landlord; Dog Door: $322.00 awarded to landlord; Door – Excess: $550.00 awarded to landlord; Water Rates: $281.14 awarded to landlord

What type of tenancy dispute was case 4799558?

The primary dispute was Property damage. Related themes: Rent arrears, State of repair.

Where can I read the official tribunal order for case 4799558?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10906596-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4799558 about?

The tribunal order states: Justin Reilly and Jessie Reilly must pay Summit Property Management Limited

How much money was awarded in case 4799558?

Compensation: Failure to maintain –…: $500.00 awarded to landlord; Property Damage: $500.00 awarded to tenant; Rent Arrears: $992.14 awarded to landlord; Bedroom Floor – Excess: $550.00 awarded to landlord; Dog Door: $322.00 awarded to landlord; Door – Excess: $550.00 awarded to landlord; Water Rates: $281.14 awarded to landlord

What type of tenancy dispute was case 4799558?

The primary dispute was Property damage. Related themes: Rent arrears, State of repair.

Where can I read the official tribunal order for case 4799558?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10906596-Tribunal_Order.pdf.

5 Greenhill Road, Wakatu, Nelson 7011 Tenancy Tribunal Case 4799558 — Property damage

Claims and awards in Tenancy Tribunal application 4799558 — net $715.28 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$992.14		Rent arrears
Water rates	$281.14		Water rates
Repairs: Dog door	$322.00		Repairs: Dog door
Repairs: Door – excess	$550.00		Repairs: Door – excess
Compensation: Failure to maintain – external surface	$500.00		Failure to maintain – external surface
Repairs: Bedroom floor – excess	$550.00		Repairs: Bedroom floor – excess
Compensation: Floor damage (part – accelerated		$500.00	Floor damage (part – accelerated
Total award	$3,195.28	$500.00
Net award	$715.28
Total payable by Tenant to Landlord	$715.28

Order

Justin Reilly and Jessie Reilly must pay Summit Property Management Limited As Agent For Fern Elizabeth Crowe $715.28 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,980.00 (5308464-003) to Summit Property Management Limited As Agent For Fern Elizabeth Crowe immediately.

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.
The tenant counterclaimed, seeking compensation.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
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.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.
This tenancy commenced 18 March 2021 and ended 17 December 2023.

How much is owed for rent and water rates?

The tenancy ended on 17 December 2023. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy are as ordered. The tenant did not dispute the amounts as ordered.

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 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.
“Fair wear” is deterioration caused by the reasonable use of the premises. “Fair tear” is deterioration caused by the ordinary operation of the forces of nature. Importantly, intentional or careless damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.
The following damage was caused during the tenancy: a. Bedroom floor – impact damage. Bed legs from one of the children’s beds caused numerous impact dents to the floor. These were not one off and are considered accidental damage. The tenant accepted liability for this damage. An insurance claim for this damage was accepted and an excess of $550.00 applicable. b. Hole in door – there was a sizable hole in one of the doors (master bedroom). The tenant accepted liability for this damage. An insurance claim for this damage was accepted and an excess of $550.00 applicable. c. Floor surface – the landlord sought $4186.00 based on a quote to fully sand and apply three coats of polyurethane to the living room, kitchen, entrance and bedroom three floors. The quote notes the bedroom room floor damage will be repaired by steaming the dents. This is expected to remove 90% of the damage. d. Dog door – a preexisting dog door was damaged during the tenancy and the kitchen door pane replaced by the tenant. The pane was not of the required standard and a glazier replaced it, noting a security risk with the existing window as it may fall out. The invoice cost of $322.00 is award. A second line item, bathroom shower tile replacement, was not sought.
The damage in a. and b. above is more than fair wear and tear, and the tenant has not disproved liability for the damage. Point c. damage includes some wear and tear consideration and this is discussed further below.

Was there a loss?

It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party should be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.
The guiding principle in any tort case is restitution in integrum (a Latin term meaning “restitution to the original position”)– to place the injured party in the same position that it would have been in if the damage had not occurred. Thus, the appropriate measure of compensation for negligent damage is the difference in value immediately before and immediately after the damaging act(s).
However, in practicality, this principle is oversimplified, as it is often nearly impossible to place a party in the exact same position for a variety of reasons. To prevent overcompensation or a windfall to an applicant, the concept of betterment has developed which essentially limits an applicant’s award on account of being placed in a better position than prior to the loss.
One challenge in the landlord’s application is the delay in completing repairs. The tenancy ended in December 2023 and a new tenancy has commenced since (and continues). There was no decrease in the weekly rental in the new tenancy with the premises in essentially the same condition.
Post-hearing evidence from the landlord confirmed no actual repair has been commenced. It stated this was due to the owner awaiting this outcome but the earlier point regarding the time lapse of 10 months since the end of this tenancy stills stands, the statement of works notwithstanding.
The other challenge is to what extent fair wear and tear has left the floor in the condition shown. There are significant areas of deterioration that are not consistent with dog damage; rather water or other deterioration as may be expected on such a surface. It is firstly for the landlord to discharge the onus it bears in proving damage beyond fair wear and tear.
I have taken into account 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, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
The ingoing condition report notes multiple areas with existing “light” wear and or tear. This is consistent with the likely age of the floor surface.
Having considered all evidence and submissions, while there has been no actual loss due to repair incurred yet, I accept the two insurance claims with the respective excesses of $550.00 as appropriate awards. I do that with a mind that the proposed insurance settlement may comprise some betterment. Any such betterment is offset by my determination regarding the non-insured claim for significant floor sanding and resurfacing.
I do not consider the tenant liable for that full cost of $4,186.00 as quoted. I consider some overlap with bedroom three repair already recognised. No loss has been incurred and the current tenants have no expectation regarding the repair being done. I do consider some accelerated depreciation has occurred due to some dog damage that is considered greater than expected wear or tear.
I have determined an award of $500.00 as compensation for the advanced depreciation due to damage greater than expected wear and tear is appropriate. The landlord may apply that towards any future floor repairs as she see fit.

Did the landlord fail to maintain?

It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
In Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993 (upheld in the District Court decision of Birch v Otautahi Community Housing Trust, CIV-2018-009-002094 [2020] NZDC 17667) sets out the factors that the Tribunal should take into account when making a damages award, being: a. The nature of the breach b. The duration of the breach c. The effect of the breach.
The tenant claims the landlord failed to remedy an ongoing external water drainage problem within a reasonable timeframe.
There was a major drainage project undertaken early in the tenancy. This was foreshadowed to the tenant and the likely disruption anticipated, explained and accepted by the tenant. That was not the reason for his seeking $2000.00 compensation. Rather, after the work was completed the was an ongoing issue with surface water retention at the back of the house. The tenant claims ot have raised this regularly with the landlord. This was proven by note is the ongoing routine inspections. It was raised 13 September 2021, and again on 24 November 2021. Further reference is noted in May 2022 after the tenant dug a gully to divert water flow away. Another issue regarding a neighbour’s water entering the property was raised but apparently resolved. Water logging as a recurring issue was noted later on 30 May 2023. There 3was evidence of the owner being made aware of this but no evidence of active management of the problem was available. The landlord encouragement of the use of its portal for reporting problems, and any lack of tenant uptake, does not reduce the obligation in response to the clear and ongoing recording of the issue over many inspections.
I consider the water retention problem was a byproduct of the drainage work (the drainage itself appears to have been functioning as expected) and the subsequent reinstatement of the ground being undulating or drainage reduced through changes in the top layers (eg, clay replacing soil). Whatever the cause, I accept the tenant has an ongoing inconvenience during wet periods that was not attended to appropriately. The issue was clearly signalled and endured for a considerable period. I do not however find the effect to be of the significance claimed. Allowing for the tenant remediation effort and some inconvenience due to the wet area I have determined a compensation figure of $500.00 should be awarded for the continued failure to maintain.
The tenant also claimed for failures with regard to window seals and claimed mould was growing due to landlord failures but neither of these are evidenced such that grounds for compensation are established and they are dismissed. No evidence of any other failure regarding the Healthy Homes Standards were proven.
I leave each party to carry its cost of filing.
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord did not request suppression in its application but did so at the hearing. I do not consider the landlord has enjoyed overall success to be considered substantially successful. I see no special or other consideration merits suppression. The request is declined.

Claims and awards in Tenancy Tribunal application 4799558 — net $715.28 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$992.14		Rent arrears
Water rates	$281.14		Water rates
Repairs: Dog door	$322.00		Repairs: Dog door
Repairs: Door – excess	$550.00		Repairs: Door – excess
Compensation: Failure to maintain – external surface	$500.00		Failure to maintain – external surface
Repairs: Bedroom floor – excess	$550.00		Repairs: Bedroom floor – excess
Compensation: Floor damage (part – accelerated		$500.00	Floor damage (part – accelerated
Total award	$3,195.28	$500.00
Net award	$715.28
Total payable by Tenant to Landlord	$715.28

Order

Justin Reilly and Jessie Reilly must pay Summit Property Management Limited As Agent For Fern Elizabeth Crowe $715.28 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,980.00 (5308464-003) to Summit Property Management Limited As Agent For Fern Elizabeth Crowe immediately.

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.
The tenant counterclaimed, seeking compensation.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
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.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.
This tenancy commenced 18 March 2021 and ended 17 December 2023.

How much is owed for rent and water rates?

The tenancy ended on 17 December 2023. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy are as ordered. The tenant did not dispute the amounts as ordered.

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 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.
“Fair wear” is deterioration caused by the reasonable use of the premises. “Fair tear” is deterioration caused by the ordinary operation of the forces of nature. Importantly, intentional or careless damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.
The following damage was caused during the tenancy: a. Bedroom floor – impact damage. Bed legs from one of the children’s beds caused numerous impact dents to the floor. These were not one off and are considered accidental damage. The tenant accepted liability for this damage. An insurance claim for this damage was accepted and an excess of $550.00 applicable. b. Hole in door – there was a sizable hole in one of the doors (master bedroom). The tenant accepted liability for this damage. An insurance claim for this damage was accepted and an excess of $550.00 applicable. c. Floor surface – the landlord sought $4186.00 based on a quote to fully sand and apply three coats of polyurethane to the living room, kitchen, entrance and bedroom three floors. The quote notes the bedroom room floor damage will be repaired by steaming the dents. This is expected to remove 90% of the damage. d. Dog door – a preexisting dog door was damaged during the tenancy and the kitchen door pane replaced by the tenant. The pane was not of the required standard and a glazier replaced it, noting a security risk with the existing window as it may fall out. The invoice cost of $322.00 is award. A second line item, bathroom shower tile replacement, was not sought.
The damage in a. and b. above is more than fair wear and tear, and the tenant has not disproved liability for the damage. Point c. damage includes some wear and tear consideration and this is discussed further below.

Was there a loss?

It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party should be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.
The guiding principle in any tort case is restitution in integrum (a Latin term meaning “restitution to the original position”)– to place the injured party in the same position that it would have been in if the damage had not occurred. Thus, the appropriate measure of compensation for negligent damage is the difference in value immediately before and immediately after the damaging act(s).
However, in practicality, this principle is oversimplified, as it is often nearly impossible to place a party in the exact same position for a variety of reasons. To prevent overcompensation or a windfall to an applicant, the concept of betterment has developed which essentially limits an applicant’s award on account of being placed in a better position than prior to the loss.
One challenge in the landlord’s application is the delay in completing repairs. The tenancy ended in December 2023 and a new tenancy has commenced since (and continues). There was no decrease in the weekly rental in the new tenancy with the premises in essentially the same condition.
Post-hearing evidence from the landlord confirmed no actual repair has been commenced. It stated this was due to the owner awaiting this outcome but the earlier point regarding the time lapse of 10 months since the end of this tenancy stills stands, the statement of works notwithstanding.
The other challenge is to what extent fair wear and tear has left the floor in the condition shown. There are significant areas of deterioration that are not consistent with dog damage; rather water or other deterioration as may be expected on such a surface. It is firstly for the landlord to discharge the onus it bears in proving damage beyond fair wear and tear.
I have taken into account 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, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
The ingoing condition report notes multiple areas with existing “light” wear and or tear. This is consistent with the likely age of the floor surface.
Having considered all evidence and submissions, while there has been no actual loss due to repair incurred yet, I accept the two insurance claims with the respective excesses of $550.00 as appropriate awards. I do that with a mind that the proposed insurance settlement may comprise some betterment. Any such betterment is offset by my determination regarding the non-insured claim for significant floor sanding and resurfacing.
I do not consider the tenant liable for that full cost of $4,186.00 as quoted. I consider some overlap with bedroom three repair already recognised. No loss has been incurred and the current tenants have no expectation regarding the repair being done. I do consider some accelerated depreciation has occurred due to some dog damage that is considered greater than expected wear or tear.
I have determined an award of $500.00 as compensation for the advanced depreciation due to damage greater than expected wear and tear is appropriate. The landlord may apply that towards any future floor repairs as she see fit.

Did the landlord fail to maintain?

It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
In Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993 (upheld in the District Court decision of Birch v Otautahi Community Housing Trust, CIV-2018-009-002094 [2020] NZDC 17667) sets out the factors that the Tribunal should take into account when making a damages award, being: a. The nature of the breach b. The duration of the breach c. The effect of the breach.
The tenant claims the landlord failed to remedy an ongoing external water drainage problem within a reasonable timeframe.
There was a major drainage project undertaken early in the tenancy. This was foreshadowed to the tenant and the likely disruption anticipated, explained and accepted by the tenant. That was not the reason for his seeking $2000.00 compensation. Rather, after the work was completed the was an ongoing issue with surface water retention at the back of the house. The tenant claims ot have raised this regularly with the landlord. This was proven by note is the ongoing routine inspections. It was raised 13 September 2021, and again on 24 November 2021. Further reference is noted in May 2022 after the tenant dug a gully to divert water flow away. Another issue regarding a neighbour’s water entering the property was raised but apparently resolved. Water logging as a recurring issue was noted later on 30 May 2023. There 3was evidence of the owner being made aware of this but no evidence of active management of the problem was available. The landlord encouragement of the use of its portal for reporting problems, and any lack of tenant uptake, does not reduce the obligation in response to the clear and ongoing recording of the issue over many inspections.
I consider the water retention problem was a byproduct of the drainage work (the drainage itself appears to have been functioning as expected) and the subsequent reinstatement of the ground being undulating or drainage reduced through changes in the top layers (eg, clay replacing soil). Whatever the cause, I accept the tenant has an ongoing inconvenience during wet periods that was not attended to appropriately. The issue was clearly signalled and endured for a considerable period. I do not however find the effect to be of the significance claimed. Allowing for the tenant remediation effort and some inconvenience due to the wet area I have determined a compensation figure of $500.00 should be awarded for the continued failure to maintain.
The tenant also claimed for failures with regard to window seals and claimed mould was growing due to landlord failures but neither of these are evidenced such that grounds for compensation are established and they are dismissed. No evidence of any other failure regarding the Healthy Homes Standards were proven.
I leave each party to carry its cost of filing.
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord did not request suppression in its application but did so at the hearing. I do not consider the landlord has enjoyed overall success to be considered substantially successful. I see no special or other consideration merits suppression. The request is declined.

Tenancy Tribunal case 4799558 — Property damage at 5 Greenhill Road, Wakatu, Nelson 7011

At a glance

Tenancy Tribunal case 4799558 — Property damage at 5 Greenhill Road, Wakatu, Nelson 7011

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent and water rates?

Is the tenant responsible for the damage to the premises?

Was there a loss?

Did the landlord fail to maintain?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent and water rates?

Is the tenant responsible for the damage to the premises?

Was there a loss?

Did the landlord fail to maintain?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions