What was Tenancy Tribunal case 4806937 about?

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

How much money was awarded in case 4806937?

Filing Fee: $20.44 awarded to landlord; Property Damage: $230.00 awarded to landlord

What type of tenancy dispute was case 4806937?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4806937?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10414760-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4806937 about?

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

How much money was awarded in case 4806937?

Filing Fee: $20.44 awarded to landlord; Property Damage: $230.00 awarded to landlord

What type of tenancy dispute was case 4806937?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4806937?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10414760-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4806937 — Property damage

Claims and awards in Tenancy Tribunal application 4806937 — net $250.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: (damage to floors	$230.00	Repairs: (damage to floors
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$250.44
Bond	$2,100.00
Total payable by Tenant to Landlord	$250.44

Claims and awards in Tenancy Tribunal application 4806937 — net $250.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: (damage to floors	$230.00	Repairs: (damage to floors
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$250.44
Bond	$2,100.00
Total payable by Tenant to Landlord	$250.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants and the Landlord’s name and identifying details.
[The tenant/s] to pay [The landlord] $250.44 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,100.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $250.44 [The tenant/s]: $1,849.56

Reasons

Both parties attended the hearing.
The tenants applied for compensation, refund of the bond and reimbursement of the filing fee following the end of the tenancy.
The landlord made a cross application for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Background
The tenancy commenced on 10 July 2021 and ended on 24 December 2023.
The tenants explained that during the tenancy they felt unheard, their emotional health and wellbeing not considered and that the property manager was unapproachable and focused solely on minimising costs to the owner of the property. They also claimed she did not always keep them informed of her investigations into their concerns or the outcome of those investigations. As such, they were unaware of when or if she had investigated into any concerns raised by them. All they saw was that nothing changed after they raised their concerns to her.
On the contrary, the tenants say they found the owner of the property approachable, professional and considerate of their requests and always willing to address any concerns they raised. As such, they bypassed the property manager and dealt directly with the owner of the property when they could.
The property manager was professional during the hearing and reflected back that she had heard what the tenants had conveyed about her approach to them, she apologised for them feeling that way and undertook to reflect on their feedback.
I reminded the tenants that s45 of the Residential Tenancies Act 1986 (RTA) does not require the landlord to be empathetic to tenants or to treat them in a kind and considerate manner. It requires the landlord (both the property manager and owner) to maintain the premises in a reasonable state of repair, to provide the premises in a clean and tidy state and in a manner that ensures the premises meet all statutory and regulatory standards, to compensate the tenant for any reasonable expenses incurred by the tenant in repairing the premises and to take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises. A.TENANTS CLAIMS Failure to maintain
Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1
There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .
There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .
Under section 45(1)(a) of the RTA, a landlord must also provide the premises in a reasonable state of cleanliness.
Breaching either of these s45 obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants because of the landlord’s failure to maintain the premises.
The tenants gave evidence that: a. The property manager was “rude and nit-picky” to them during property inspections and when they raised maintenance or repair issues with her and that her curt and abrupt approach to them made them reluctant to address any repair and maintenance issues with her; b. The area the apartment is in is unsafe and the tenants had an attempted break in to their apartment on 3 November 2021 and had their car vandilised and mail stolen from their letterbox; c. The property manager was informed of an attempted break in to the apartment on 3 November 2021, she failed to inform the owner of the attempted break in so they ended up contacting the owner themselves; d. The property manager failed to have the broken lock/ lose door handle from the date of the attempted break in to 31/10/23 (11 months); 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. e. The heat pump in the apartment was faulty in that it intermittently emitted a foul smell that caused one of the tenant’s respiratory issues, so the tenants were unable to use the heat pump for the duration of the tenancy. They say they used a small bar heater instead to heat their home; and f. They requested nett curtains over the ranch slider as from the road persons could look directly into the apartment and a man was frequently standing on the pavement opposite the apartment staring at the female tenant when her husband was away and making her feel unsafe. Net Curtains
The tenants claimed the apartment had black out curtains for the ranch slider that faced the road. They explained the area was opposite a business, was in an unsafe area, that they knew that when they took on the tenancy, and they thought the double entry swipe cards to the building and then the floor as well as a lock to enter the apartment would provide enough security.
The tenants gave evidence that around July 2022 a man started standing outside the apartment looking up to it from the street. The male tenant says he travelled for work and was unhappy his wife was feeling intimidated by this man repeatedly standing on the path across from the apartment looking up at his wife. In August 2022, the tenants say they requested net curtains be installed across the ranch slider to allow additional privacy to the tenants and to ensure the female tenant was not left feeling scared as someone was watching her, particularly in the day when she did not want to block out the natural light by drawing the black out curtains.
Both parties agreed that the net curtains were installed about 3 weeks after they were requested by the tenants. The property manager confirmed that the nett curtains had to be ordered and custom made as the ranch slider was not a standard size.
The property manager confirmed she had made some suggestions regarding other ways to achieve an increase in privacy while the curtains were being made. These suggestions were to use the metal screen outside the ranch slider to give partial privacy and to install a fake ivy fence along the deck glass.
The tenants claim the property manager asked them to take these measures instead of getting curtains, as she wanted to save the owner money. In addition, they did not want to purchase fake ivy fencing as it was an extra expense they did not wish to incur. They say the property manager had made them buy certain cleaning products to keep the house more than reasonably clean and tidy and this was a further expense that they did not think they should have to incur.
The property manager stated that she had made these suggestions and confirmed they were not instructions. The tenants were free to take her suggestions on board and implement them or not. In addition, she stated she had taken immediate steps to get permission from the owner to install net curtains.
I find the landlord addressed the privacy issues in a timely manner in all the circumstances and the tenants have not suffered any loss because of the 3- week delay in the curtains being custom made and installed. Further, I find the suggestions the property manager to be just that, suggestions. I do not agree that these were instructions the tenants were told they had to follow. It was up to them if they chose to do so or not. I accept the property manager may not have been as clear in her communications as she could have been in relation to her having spoken to the owner and her suggestions being in addition to the net curtains not as a substitute for getting net curtains.
I dismiss the tenants claims for compensation for loss of amenity, stress and inconvenience for the 3-week delay in the installation of the net curtains. Heat pump
The tenants claim the heat pump omitted a foul smell intermittently and they stopped using it not long after their tenancy commenced (middle of winter 2021) because the unclean air was offensive and caused the female tenant respiratory problems. Further, they say they raised this issue with the property manager in December 2021, December 2022 and again on 17 July 2023, the property manager did nothing to investigate or remedy the issue, the issue persisted up to the end of the tenancy and they had to use a bar heater instead of the heat pump. They also claimed the property manager told them that the smell was probably fumes from cars in the garage where the outside part of the heat pump unit was located.
The property manager gave evidence that she had investigated this complaint. She stated she had been to the Building Manager and raised the issue with the Body Corporate twice. The Building Manage had checked the filter and it was clean and he could see no reason why the smell should be omitted from the heat pump in the tenants’ apartment. The Body Corporate could see no reason for the intermittent issue as the heat pump system was new, not due for maintenance for 12 months and was situated in a place that should not cause car fumes to go through the system into the tenants’ house.
The parties agreed that when the property manager wen to inspect the heat pump, it did not omit any foul smell. The other time the property manager was to inspect the heat pump the batteries failed and so it could not be tested.
I am satisfied that the property manager took all reasonably practicable steps to investigate the tenants concerns and that the investigations undertaken by the Building Manager and Body Corporate did not lead to any findings that suggested remedial work was required.
The tenants were not able to prove that a foul smell was being omitted by the heat pump, although they claim the tenant in the apartment above them was having the same issue. Had multiple tenants been having the same issue, the Building Manager and Body Corporate would have been aware of multiple complaints and the property manager confirmed that there had not been any other complaints that she was aware of and that she did all she could to raise the issue with the correct persons and it was up to the Building Manager and Body Corporate to investigate further if further investigation was required. The property manager had raised the tenants concerns appropriately in the circumstances.
I am not satisfied that the property manager failed to meet the landlord’s obligation to investigate and remediate the heat pump issue and dismiss the tenants claims accordingly. Door lock/handle
The tenants say the door handle and lock was damaged during the attempted break in on 3 November 2021 and although the lock was able to be made to work after 3 attempts by the tenant, the door handle remained lose and made the apartment more susceptible to being broken into again. They claim they made a request to have the door lock and handle fixed, but it was only fixed on 31 October 2022, and they had been reluctant to keep asking for it to be fixed due to the inconsiderate and unfeeling responses they got from the property manager when raising their issues with her.
The property manager referred me to the picture of the door lock and handle that had been provided in evidence. She claimed the lock worked, there had been no suggestion by the tenants that they could not lock and unlock or open the door, the lock secured the apartment and although the handle was slightly loose, it did not need to be fixed to be functional. Further, she confirmed that when the contractor came to fix the lock/door all the contractor did was tighten the handle slightly and this did not improve the functionality of the door locking system.
I accept the tenants felt unsafe after the attempted break in and this feeling of not being safe was exacerbated by the vandalism of their car and items stolen from their letterbox.
I am not satisfied that the door lock was not functional or that it needed replacing as the property manager has confirmed it was never replaced and the new tenants have not had any issues with it not working. The tenants also confirmed they did not have any issues with the lock, except on the day of the attempted break in. They said they initially had trouble opening the door as the lock was blocked up with sawdust from the attempted break in. Once that was cleared the tenants say they had no more issues with opening and closing the lock.
I am also not satisfied that the door handle being slightly loose caused a safety or a functionality issue with the door. In addition, the tenants confirmed that they did not follow this issue up with the property manager, so she was not aware it was still a concern for them. Once the owner knew about the concern the door handle was tightened.
Based on all the evidence provided to me, I am not satisfied that the evidence proves this was a failure to maintain and repair the property by the landlord. Therefore, I dismiss the tenants claim for failure to maintain the door lock and handle. Other miscellaneous claims
The tenants applied for compensation for their following claims: a. The property manager sent them an electronic tenancy agreement that differed from the hard copy one they had been provided, in that the electronic tenancy agreement recorded the tenancy start date as 3 rather than 10 July 2021 and the drapes and dryer were not included as chattels on the electronic version; b. They had been forced to take time off for viewings of the apartment prospective tenants after they gave notice, which led to a loss of income; c. They had to take time off to attend today’s hearing, which led to loss of income; d. They had to take 2 days off work to clean the apartment before the exit inspection, which led to loss of income; and e. They have lost money because the landlord has retained all their bond until after these proceedings and they claim they should be awarded use of money interest on the withheld bond from 24 December 2023 to 4 June 2024.
The tenants have not suffered any loss because of the differences between the electronic and hard copy of the tenancy agreement. There has been no dispute about when the tenancy commenced or what chattels were provided to the tenants. This claim is dismissed for lack of the Tribunal’s jurisdiction.
There is no provision in the RTA for compensating a tenant for lost time due to cleaning a house just prior to the end of the tenancy, for attending viewings by prospective tenants or for attending this Tribunal hearing. These claims are dismissed for lack of the Tribunal’s jurisdiction.
There is no provision in the RTA for use of money interest held by the Bond Centre until the Tribunal proceedings have been concluded. Section 127(7) of the RTA provides “All interest, dividends, and other gains (whether in the nature of income or capital, and whether in money or otherwise, and whether realised or not) arising from any investment of money in the Residential Tenancies Trust Account shall belong to the Crown and be treated as departmental revenue”. As such, any interest on the bond money paid by the tenants belongs to the Crown and there is no advantage to the landlord of not having bond money in dispute paid out until the parties’ matters are heard by the Tribunal. This claim is dismissed for lack of the Tribunal’s jurisdiction. B.LANDLORD’S CLAIMS

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.
I am satisfied the following damage was caused during the tenancy: a. Two scratches to the wood veneer flooring in the lounge that the photographic evidence shows were not in the last property inspection on 2 November 2023 but were present at the exit inspection in December 2023; and b. One rip in the wood veneer flooring in the entrance way that that the photographic evidence shows were not in the last property inspection on 2 November 2023 but were present at the exit inspection in December 2023.
The tenants claimed they did not know how or when the scratches on the lounge floor occurred but denied that it happened when they moved out. Further, they claimed that the flooring was poor quality and easily torn and marked and that the rip was there for at least a year before they moved out and had not been noticed by the property manager during the inspections.
The tenants claimed throughout the hearing the property manager was “nit- picky” and overly critical and put pressure on them to use specific cleaning products that went over and above the tenant obligation to keep the premises reasonably clean and tidy. The property manager confirmed she did not see the scratches or the tear prior to the exit inspection. On the balance of probabilities, I accept the property manager pays attention to detail, takes her job to maintain the property seriously and would have noticed of any of this damage had occurred prior to the tenants moving out.
I am satisfied this damage to the floor is more than fair wear and tear, and the tenants have not disproved liability for this damage.
The amounts ordered are proved.
I have considered 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 considered the age and condition of the items at the start of the tenancy and their likely useful lifespan. Reimbursement of filing fee
Because [The applicant] has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4806937 — Property damage

At a glance

Tenancy Tribunal case 4806937 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions