What was the outcome of Tenancy Tribunal case 4807837?

The tribunal order states: Lakshmi Priya Muthe and Siddharth Bajpai must pay Linze Holdings Limited

How much money was awarded in case 4807837?

Cleaning: $380.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $7,744.28 awarded to landlord; Carpet: $390.00 awarded to landlord; Rubbish Removal: $200.00 awarded to landlord; Smoke Alarms: $20.00 awarded to landlord; Smoke Alarms: $150.00 awarded to landlord

What type of tenancy dispute was case 4807837?

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

Where can I read the official tribunal order for case 4807837?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10319037-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4807837?

The tribunal order states: Lakshmi Priya Muthe and Siddharth Bajpai must pay Linze Holdings Limited

How much money was awarded in case 4807837?

Cleaning: $380.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $7,744.28 awarded to landlord; Carpet: $390.00 awarded to landlord; Rubbish Removal: $200.00 awarded to landlord; Smoke Alarms: $20.00 awarded to landlord; Smoke Alarms: $150.00 awarded to landlord

What type of tenancy dispute was case 4807837?

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

Where can I read the official tribunal order for case 4807837?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10319037-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2, 8 Anzac Parade, Hamilton Central, Hamilton Tenancy Tribunal Case 4807837 — Rent arrears

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Reasons

Claims and awards in Tenancy Tribunal application 4807837 — net $7,464.72 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears 28 February 2024	$7,744.28	Rent arrears 28 February 2024
Cleaning	$380.00	Cleaning
Repairs: carpet	$390.00	Repairs: carpet
Rubbish removal	$200.00	Rubbish removal
Replace smoke alarms	$20.00	Replace smoke alarms
Exemplary damages interference with smoke alarm	$150.00	Exemplary damages interference with smoke alarm
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,464.72
Total payable by Tenant to Landlord	$7,464.72

Mr Lin appeared for the landlord. There was no appearance by the tenant.

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 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”).

How much is owed for rent?

The tenancy commenced on 25 March 2022 and was for a fixed term to end on 30 March 2023. On 18 March 2023, before the end of the fixed term, the parties entered into a new fixed term to commence on 31 March 2023 and end on 01 April 2024. The parties also agreed that the rent would increase from $360.00 to $390.00 per week effective 31 March 2023. The landlord states that on or around October 2023, the tenant raised the possibility of ending the fixed term; however, no agreement was reached. The rent summary produced shows the last rent payment as 06 October 2023. The landlord conducted an inspection of the property on 30 November 2023. The photographs taken at that inspection have been produced. The landlord states that it was apparent that the tenants had left. The photographs show the property in disarray, there is no furniture, beds, or clothing visible. The landlord relies on these photographs as evidence of the property’s condition at the end of the tenancy. This is the date on which I find that the landlord took possession of the property, thus ending the tenancy. The landlord states that they then advertised the property for rent but did not find suitable replacement tenants until 28 February 2024, an elapsed time of some three months. The landlord states that despite the media reporting a shortage of rental properties, their experience that is not entirely accurate. The landlord has produced a new agreement to commence 29 February 2024. The landlord is seeking rent arrears to that date.

In Nest Residential Rentals and Landlord Service Ltd v Folland [ 2020] NZDC 628 , the Court held that in cases where a tenant had abandoned a fixed term tenancy, the landlord was not obliged , under section 49 of the Act, to mitigate loss, and in that case was, entitled to claim rent through to the end of the fixed term or , if sooner, the entering of a new agreement. The landlord application is not for abandonment. They allege the tenant has breached the terms of the agreement by not honouring the fixed term. The landlord had a duty to mitigate loss. However, I accept the landlord’s submission. In this case the Tribunal awards rent arrears to 30 November 2023, and to the start of the new tenancy on 28 February 2024.

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

The landlord claims that the tenant failed to leave the property reasonably clean and tidy, including the carpet, and remove all rubbish. The landlord also claims that the tenant is liable for a missing chattel, namely a shower curtain, and that they have interfered with the smoke alarms.

The landlord is claiming cleaning costs of $380.00, $160.00 for carpet cleaning, $230.00 for rubbish removal, and $20.00 to replace the shower curtain. Regarding the smoke alarm, the landlord claims $20.00 to refit the alarm, and an award of exemplary damages.

No quotes or invoices have been produced. The landlord state that they undertook the work themselves, and their compensation claims are based on the time it required it took them to complete the task.

The property is a two-bedroom unit constructed in the 1970’s. There are other similar units in the complex. The property has two bedrooms, toilet / bathroom, which also houses the laundry, kitchen, and open plan dining / lounge area.

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) of 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 reasonably clean and tidy 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 inspection reports and photographs showing the property at the commencement and end of the tenancy.

The landlord has produced photographs showing the property at the commencement and end of the tenancy. Having considered those photographs, I am satisfied that the tenant has failed to leave the property in a reasonably tidy condition and remove all rubbish. The claim for cleaning is reasonable and awarded in full. Regarding the rubbish removal, the claim is made up of $150.00 to remove items of rubbish left inside the property, which were loaded onto a trailer and taken to the waste transfer station, and an additional $80.00 to remove rubbish left in the red lid council waste bin. I am not satisfied that the additional $80.00 is warranted. Both could have been disposed of at the same time. In my view the $200.00 is sufficient to cover removal of all rubbish.

Dealing with the claim for carpet cleaning, the carpet had signs of staining and other damage at the commencement of the tenancy. In this case, I am not satisfied that, except for any area of damage that I will deal with later, that the carpet was otherwise in a more stained condition that it was at the commencement. The claim is declined. I accept that the carpet required vacuuming and possible deodorising but am of the view that this is already adequately covered by the compensation awarded for general cleaning.

Regarding the missing shower curtain, the end of tenancy inspection photographs shows what appears to be a shower curtain in the shower. While it is not the same curtain provided at the commencement of the tenancy, I am not satisfied the tenant has failed to meet their obligation to return a shower curtain in the same condition. The claim is dismissed.

A tenant must not cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004. See section 40(2)(ab) of the Act. The definition of “means of escape” includes “all active and passive protection features required to warn people of fire...”, which covers smoke alarms.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 40(3A)(b) and Schedule 1A of the Act..

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) of the Act.

There were two smoke alarms, in one of the two bedrooms, the other, required for compliance with the relevant smoke alarm regulations, was located in the lounge close to the entrance of both bedrooms. The landlord has produced a photograph taken at the end of the tenancy showing a smoke alarm sitting on a container in the kitchen. The landlord states that it was the one located in the lounge. The landlord is claiming $20.00 to refit and test the alarm, which he states involved waiting to see if the alarm was faulty, and exemplary damages.

I award the $20.00 clam to refit and test the alarm. Regarding exemplary damages. It is in the public interest that tenant’s does not interfere with smoke alarms. Doing so could potentially lead to the loss of life or serious damage. In this case, I am the opinion that an award of $150.00 exemplary damages is appropriate.

Is the tenant responsible for the damage to the premises?

The landlord has produced a photograph showing damage to the carpet in the dining area near the kitchen. The damage is a large dark coloured stain which the landlord states could not be removed. The landlord states that the stain has been caused by food left in a cardboard box which has seeped through the bottom. As stated, although there were stains and other damage present at the commencement of the tenancy, this is not one of them.

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.

I am satisfied that the damage has occurred during the tenancy and is more than fair wear and tear. The tenant has not disproven liability. In my opinion, based on the evidence, the damage is more likely the result of carelessness. No quotes, estimates or invoices have been provided. The landlord claim is for the $650.00 excess on the basis that in their experience, it would cost at least that amount to repair. The landlord is entitled to be compensation for the breach. Any compensation awarded must be reasonable. The best evidence to quantum loss is quotes, estimates, or invoices. Without these the Tribunal must determine the quantum of any loss on the evidence it does have. In this case, the carpet is approximately 5 years old at the commencement of the tenancy. The useful life span of carpet in rental properties is around 10 - 12 years. In this case the carpet at the commencement of the tenancy was stained and had some damage. Taking these matters into account, I reduce the amount claimed by 40% for betterment and depreciation and award the landlord compensation of $390.00. Costs

Because Linze Holdings Limited has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression

Although they are entitled under section 95A of the Act, the landlord does not seek name suppression.

Reasons

Claims and awards in Tenancy Tribunal application 4807837 — net $7,464.72 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears 28 February 2024	$7,744.28	Rent arrears 28 February 2024
Cleaning	$380.00	Cleaning
Repairs: carpet	$390.00	Repairs: carpet
Rubbish removal	$200.00	Rubbish removal
Replace smoke alarms	$20.00	Replace smoke alarms
Exemplary damages interference with smoke alarm	$150.00	Exemplary damages interference with smoke alarm
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,464.72
Total payable by Tenant to Landlord	$7,464.72

Mr Lin appeared for the landlord. There was no appearance by the tenant.

The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

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

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 40(3A)(b) and Schedule 1A of the Act..

Is the tenant responsible for the damage to the premises?

Because Linze Holdings Limited has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression

Although they are entitled under section 95A of the Act, the landlord does not seek name suppression.

Tenancy Tribunal case 4807837 — Rent arrears at Unit/Flat 2, 8 Anzac Parade, Hamilton Central, Hamilton

At a glance

Tenancy Tribunal case 4807837 — Rent arrears at Unit/Flat 2, 8 Anzac Parade, Hamilton Central, Hamilton

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

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?

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