What was Tenancy Tribunal case 4812246 about?

The tribunal order states: Under section 78(1)(a) the agreement between the parties is declared to be a

How much money was awarded in case 4812246?

Property Damage: $500.00 awarded to tenant; Power: $788.00 awarded to landlord; Property Damage: $50.00 awarded to landlord; Replace Furnishings: Mattress, Sofa: $1,150.00 awarded to landlord

What type of tenancy dispute was case 4812246?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4812246?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10832867-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4812246 about?

The tribunal order states: Under section 78(1)(a) the agreement between the parties is declared to be a

How much money was awarded in case 4812246?

Property Damage: $500.00 awarded to tenant; Power: $788.00 awarded to landlord; Property Damage: $50.00 awarded to landlord; Replace Furnishings: Mattress, Sofa: $1,150.00 awarded to landlord

What type of tenancy dispute was case 4812246?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4812246?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10832867-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4812246 — Property damage

Claims and awards in Tenancy Tribunal application 4812246 — net $1,488.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet repair	$50.00		Carpet repair
Replace furnishings: mattress, sofa	$1,150.00		Replace furnishings: mattress, sofa
Power	$788.00		Power
Exemplary damages		$500.00	Exemplary damages
Total award	$1,988.00	$500.00
Net award	$1,488.00
Total payable by Tenant to Landlord	$1,488.00

Claims and awards in Tenancy Tribunal application 4812246 — net $1,488.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet repair	$50.00		Carpet repair
Replace furnishings: mattress, sofa	$1,150.00		Replace furnishings: mattress, sofa
Power	$788.00		Power
Exemplary damages		$500.00	Exemplary damages
Total award	$1,988.00	$500.00
Net award	$1,488.00
Total payable by Tenant to Landlord	$1,488.00

Order

Under section 78(1)(a) the agreement between the parties is declared to be a residential tenancy.
[The landlord’s] claims for compensation for a gas bottle, damage to drawers, flooring, door and cleaning are dismissed.
[The tenants] must pay [the landlord] the sum of $368.00 immediately, as calculated below:

Reasons

Both parties attended the hearing, the tenants by phone.
In a decision dated 5 March 2024, the Tribunal made orders on the tenants’ applications. On 10 May 2024 the landlord’s application for a rehearing was granted. That means that the orders made on 5 March have no effect and all claims must be reheard as if no hearing had taken place.
The tenant has applied for exemplary damages for the landlord’s failure to lodge the bond and retaliatory notice. The landlord has applied for compensation, and reimbursement of the filing fee.
The onus of proof is on the party seeking to establish their claim. The standard of proof is on the balance of probabilities.

Is the agreement a residential tenancy?

The landlord disputes that the agreement between the tenants was a residential tenancy. Therefore, that is the first question to determine. Under section 78(1)(a) of the Residential Tenancies Act 1986 (the Act), the Tribunal has jurisdiction to declare the status of an agreement. If the tenancy is not a residential tenancy, this Tribunal has no jurisdiction to determine the dispute between the parties.
[The tenants] looked for a place to live on TradeMe Rentals and found the property at 87 High St Eketahuna for rent for $280 a week. After communicating with [the landlord] and his then-partner, the pair arranged a “security deposit” of $1,120 in cash which they took to the premises and handed over in exchange for a receipt. The receipt, dated 10 June 2023 reads: This is the confirmation that I have received from [the tenants] $1120 as security deposit for a long stay at our B&B 87 High Street Eketahuna 4900. If no damage is caused to the property during the period of their stay, the money will be returned on the departure.
It was agreed that the pair could have a dog at the premises, they could erect a fence and instal a garden. The rent was $280 per week plus power. There was no agreement about an end date for the occupation. They stayed at the premises for 3 months from 7 June to 17 October 2023, when they were evicted. This was as a result of a dispute over the payment of power.
The premises were described in the advertisement as “Eketahuna Studio”. The further description in the fields predetermined by TradeMe were one lounge, and a studio with one bathroom. The furnishings were listed. The “ideal tenants” 1 were one person or a couple.
The landlord’s evidence was that the arrangement was simply a “long-stay B&B”, not a residential tenancy. He said that the property was usually rented out at $120 a night as a B&B.
Section 4 of the Act provides that the Act applies to every tenancy for residential purposes except as specifically provided. 1 This appears to be a term used by the TradeMe app.
Section 2 is the interpretation section. It contains the following definitions: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful. tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy.
Section 5 of the Act lists the circumstances in which the Act will not apply. These include where the premises: 2 i. are intended to provide temporary or transient accommodation (such as that provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time; and ii. are subject to an agreement that has been entered into for the purpose of providing temporary or transient accommodation that continues to be provided under the agreement:
Although the landlord usually let the premises as a B&B on a nightly basis, the fact remains that his agreement with these women was that they could live there in indefinitely in exchange for a weekly rent. The agreement was not for the purpose of providing temporary or transient accommodation. The premises were advertised in the Rental section of TradeMe as suitable for a couple or single person. The landlord agreed at the start that the pair could have a dog, put a fence up and put a garden in. There is no dispute that the couple was going to live in the premises, rather than stay for 28 days or less. The nature of the agreement between the parties was a residential tenancy.
Accordingly, it is declared under section 78(1)(a) that there was a residential tenancy. The end of the tenancy
The tenancy ran smoothly until the middle of October. The tenants paid the rent and also the power.
By October, the landlord had not read the power meter for two months. When he did so, the power owing was $788.00. His evidence was that when he discussed this with the tenants, they refused to pay it, saying that they did not have to, because this was a B&B. He was agreeable to them paying it off over time, but they refused to.
The landlord said that he then visited the tenants in the evening to try to sort it out. They had a friend there and their neighbour from one of the other 2 Section 5(1)(k) apartments. Things became very heated, with the tenants videoing the exchange. Outside the premises the neighbour assaulted the landlord.
The tenants’ evidence was that they wanted to pay the power off in instalments and that they asked the landlord to lodge their bond and give them a written tenancy agreement. They say that it was because they did this that the landlord wanted them to leave.
The landlord decided he wanted the tenants gone. His then-partner rang Tenancy Services and was told that the Residential Tenancies Act did not apply. He produced a letter from Tenancy Services confirming that there had been two phone calls on 16 October 2023 and they had incorrectly advised that the situation was not covered by the Act, when they should have advised only that it may be excluded and should have mentioned the situations in which arrangements are excluded under section 5. The landlord understood therefore that he could not lodge the bond.
The landlord was directed to Citizens Advice and on the basis of their advice, he decided to evict the tenants and serve a Trespass Notice. His evidence was that he gave the tenants written notice and turned the power off. He said he later turned the power back on. He said that the next day he went to the Police and had a Trespass Notice served. The landlord said that the tenants were told they would have an opportunity to clean the premises.
The tenants’ version is that they were given the written notice and the Trespass Notice on the same day. They power was turned off and they could not clean the premises. They deny that they were told they could do so before they left.
The letter terminating the tenancy is dated 17 October 2023. It reads: Hi [tenants]. We have to tell you that our contract is over and you have to leave the premises. We haven’t received any payment from you this coming week and you refused to pay for electricity you used. You caused the damage to our property and never did the job you promised to repair it. Your debt and the cost of the repairs we have to do as a result of your stay exceeds the amount of security deposit you gave us at the beginning of your stay. We can’t afford you using our energy and premises without paying for them and making your own rules. We stop providing the services for you from today.
In the tenants’ application to the Tribunal lodged on or about 6 November 2023, they recorded the end date of the tenancy as 17 October 2023.
In his application to the Tribunal, the landlord recorded the termination date as 10 October, which is clearly incorrect. The landlord provided no corroborative evidence that it was served the next day. There is no date on the Trespass Notice and the landlord provided no statement from the Police confirming when it was served.
Although the tenants’ evidence was that the Trespass Notice was served the same day, that is inconsistent with their statement in their application to the Tribunal where they said: Landlord refused to lodge bond when asked and sent a retaliatory notice to vacate immediately and switched off the power supply to our flat. The next day we were formally trespassed.
Because if this, I find it more likely than not that on 17 October the termination letter was served and the power was switched off, in an attempt to get the tenants to leave, and then on 18 October the Trespass Notice was served with the assistance of the police. Failure to lodge the bond
[The tenant/s] claim the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord received the bond on 10 June 2023. The bond should have been lodged no later than 10 July 2023. This did not happen. I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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) Residential Tenancies Act 1986.
Although from 16 October 2023 the landlord may rely on the advice given to him by Tenancy Services that the Act did not apply to him, that does not excuse his actions between 11 July and 16 October.
The landlord’s failure to lodge the bond between those dates was not inadvertent. He did not intend to lodge the bond. When he advertised his premises as a studio in the TradeMe rental section and then entered into an agreement for the couple to stay indefinitely in his premises, he knew or ought to have known that this was not a short stay with a nightly rate and he had entered into a residential tenancy. I find that he has committed the unlawful act intentionally.
The landlord said he has other tenancies and has written agreements for them and lodges the bond. He cannot avoid his legal responsibilities by calling a residential tenancy a “long-term B&B”. It is in the public interest that this landlord and others realise that when they enter into a letting agreement, they must understand their legal obligations. Accordingly, I order that he pay the tenants $500.00 in exemplary damages for non-lodgement of the bond.

Was the notice retaliatory?

The tenants seek exemplary damages from the landlord on the basis that the termination notice was retaliatory.
I note that the termination letter contained no notice and did not comply with any of the Termination by Notice provisions under section 51 of the Act, but by this stage, the landlord had been wrongly advised by a reliable source that the Act did not apply.
Section 54(1) provides: Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy
Section 51 sets out the grounds on which a landlord may termination a tenancy by giving notice. The notice that the landlord gave the tenant did not comply with section 51. Therefore, section 54 does not apply.
I have considered whether exemplary damages might be instead considered under section 60AA, which provides A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.
When the landlord spoke to Tenancy Services, he was led to believe that the tenants had no rights under the Act. Therefore he did not give notice, knowing that he was not entitled to give the notice under this Act. Accordingly, there is no basis for the Tribunal to order exemplary damages as a result of the notice.

What was the impact of the landlord turning off the power?

There is no dispute that the day the landlord gave the termination notice, he turned off the power. This gives rise to two issues to be decided: a. Should the landlord pay exemplary damages to the tenant? b. Did this mean that the tenants could not clean the property?
Under section 45(2) of the Act, a landlord must not interfere with the supply of electricity to the premises, and to do so amounts to an unlawful act under section 45(2A).
Having found that there was a residential tenancy, I also find that by turning the power off, the landlord committed an unlawful act. However, I do not order exemplary damages because the day before, between 4pm and 5pm, his then- partner had been advised by Tenancy Services that the Residential Tenancies Act did not apply. He was endeavouring to exit the tenants under a mistaken belief that he was not a landlord under the Act.
The second question regarding cleaning is dealt with below.

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

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, and leave all chattels provided for their benefit. See section 40(1)€ Residential Tenancies Act 1986.
The landlord provided photographs showing that the tenant did not leave the premises reasonably clean and tidy. The tenants say they could not clean because there was no power. The landlord said that they power was switched back on and they could clean.
I have found that the Trespass Notice was issued the next day. There may have been an opportunity to clean, but the tenants were also required to move out that day, with nowhere to go.
This was not a case of a tenant having given notice, or having been given proper notice under the Act, but then failing to comply with their obligations. Even where the Tribunal evicts immediately because of unpaid rent, enforcement of possession by a bailiff is 48 hours after the tenancy ends.
In the circumstances, the tenants had at the most, 24 hours to pack up their home, find alternative accommodation. They did not have sufficient opportunity to clean. The application for compensation for cleaning costs is declined.
The landlord claimed that there was a gas bottle missing at the end of the tenancy. The tenants denied removing it.
There is no tenancy agreement listing the chattels. The gas bottle is not referred to in the advertisement on TradeMe.
The landlord has not established that the tenants removed the gas bottle.
There is no dispute that the tenants owed $788.00 for power.

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.
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 sought compensation for damage caused during the tenancy as follows: a. Drawers $207 b. Mattress $700 c. Sofa $450 d. Flooring $1138.59 e. Removal of fence $120
The drawers in question were a set of brown drawers. They were not new at the start of the tenancy. The tenants denied damage to the drawers. The landlord could not recall the exact damage or what was required to fix them. A photo of the drawers shows a scrape on the top of one of the drawers, visible only when the drawer is open.
The scrape looks like fair wear and tear. The landlord has not established that the tenants are responsible for damage amounting to $207. That claim is dismissed.
The landlord provided copies of photographs of a mattress that showed damage and soiling. He also provided a letter from JAE cleaners saying that two mattresses could not be cleaned and were past a hygienic state. The landlord discarded the mattress and replaced it with a second-hand mattress for $700.
The tenants said that the photo was not of their mattress, but of their neighbours. The landlord was adamant that the photo was of the mattress as the tenants left it.
In the absence of any photographs of the mattress from the tenant, I find on the balance of probabilities that the landlord’s photographs are of the tenants’ mattress. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The cost of replacement with a second-hand mattress is reasonable.
The landlord sought $450 to replace a second-hand sofa. This included $100 for labour and delivery. He produced a photograph showing a tear in a sofa. It is a padded sofa, and the tear is along a stitchline. There is some fraying or tufting on the sofa, which appears to wear and tear. There are no photographs of the sofa at the start of the tenancy.
The tenants again said that the photos were of a different tenancy. However, they had no photos of the sofa during their tenancy.
Again, the landlord asserted that the sofa was the one from the tenants’ apartment.
I find it more likely that the sofa was the one that was in the tenants’ apartment and that some damage was caused during the tenancy. The landlord did not know how old the original sofa was, but it was second-hand. It was reasonable to replace it with a second-hand sofa, at a cost of $450 including delivery.
The landlord sought $1138.50 for damage to flooring. In support he provided two photos showing damage to two carpet squares. He provided no invoice for the carpet and no photographs of the carpet at the start of the tenancy. The tenants did not accept that the entire flooring required replacement The landlord has not established a claim for $1138.50. I order $50.00 as compensation for replacement of carpet squares.
The landlord sought $356.50 for his time repairing a sliding door. He was unable to describe the damage or repairs. The photos did not show a damaged door. He has not established his claim. This is dismissed.
The landlord sought $120 for removal of the fence that he had agreed that the tenants could erect. He had not asked them to take it down, or provided an opportunity for them to do so. This claim is dismissed.
The amounts ordered are proved.
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.
Because both parties have had some success, there are no orders for reimbursement of the filing fees and the names and identifying details of both parties are suppressed.

Tenancy Tribunal case 4812246 — Property damage

At a glance

Tenancy Tribunal case 4812246 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

Is the agreement a residential tenancy?

Was the notice retaliatory?

What was the impact of the landlord turning off the power?

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is the agreement a residential tenancy?

Was the notice retaliatory?

What was the impact of the landlord turning off the power?

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions