What was the outcome of Tenancy Tribunal case 4813262?

The tribunal order states: Magda Robertson and Christina Robertson must pay Ray White Remuera

How much money was awarded in case 4813262?

Cleaning: $224.25 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Credit: $57.14 awarded to tenant; And Painting: $350.00 awarded to landlord

What type of tenancy dispute was case 4813262?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4813262?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10661709-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4813262?

The tribunal order states: Magda Robertson and Christina Robertson must pay Ray White Remuera

How much money was awarded in case 4813262?

Cleaning: $224.25 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Credit: $57.14 awarded to tenant; And Painting: $350.00 awarded to landlord

What type of tenancy dispute was case 4813262?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4813262?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10661709-Tenancy_Tribunal_Order.pdf.

Unit/Flat 4, 37 Hanene Street, St Heliers, Auckland 1071 Tenancy Tribunal Case 4813262 — Property damage

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Reasons

Claims and awards in Tenancy Tribunal application 4813262 — net $537.55 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning	$224.25		Carpet Cleaning
Repairs: and painting	$350.00		Repairs: and painting
Filing fee reimbursement	$20.44		Filing fee reimbursement
Rent credit		$57.14	Rent credit
Total award	$594.69	$57.14
Net award	$537.55
Total payable by Tenant to Landlord	$537.55

Both parties attended the hearing held on the 5 July 2024.

I apologise to the parties in the delay in getting this order out to the parties. I have only had the time to review the documents submitted after the hearing and the written submissions today. I confirm that in addition to reviewing those documents I have also reviewed the hearing recording.

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

The tenancy ended on the 21 December 2023.

The landlord applied to the Tribunal on the19 February 2024 seeking costs of damage to the property which it says was caused by the tenant during her tenancy.

The tenant disputed the liability because: a) The landlord did not notify her of the damage. The first she learned of the damage was when this application. She said that the landlord sent the application to the property address despite knowing the tenants had moved. The landlord had made o attempt to contact her by email, which was the main method of communication that they had used in the tenancy. b) Some of the damage to the walls, is as a result of fair wear and tear. c) She was not given a chance to inspect the damage, which believes may have been caused by her moving company, and that the landlord’s delay in notifying her of the damage has meant that she has been unable to claim these losses from her moving company. d) That she was given two different amounts for the cost of stain removal from the carpet.

At the hearing most of the time was spent on when or even if the landlord had notified the tenant of the damage to the walls, the landlord asked for extra time to confirm that it had notified the tenant of the damage. Despite the extra time the landlord was unable to provide any evidence, such as text or email messages or phone records that corroborates the property manager’s submissions and oral testimony that he told Ms Robertson about the damage to the walls.

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.

Fair wear and tear has been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant. (See discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403.)

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. Repairs and painting of the walls.

The landlord provided photographs of the walls that had black markings from where items had rubbed against the wall. There was also a photograph showing a patch of paint in a wardrobe where a 3m hook had been removed. As well as a 10-cent piece size hole/ gouge and scrapes on the wall in the stair well. The tenant says in respect of the three areas: a. The black marks could have been removed by her cleaners had she be notified/ or alternatively the landlord should have cleaned them off. b. The paint damage in the wardrobe was caused by the removal of a 3M hanger, that those hangers are a ‘normal use’ and therefore the damage is wear and tear. c. That the movers must have made the holes and gouges in the stairwell, but because the landlord did not notify her of these issues, she has lost her ability to claim for the damage from the movers.

I have considered both parties’ evidence and am satisfied that the damage was caused during the tenancy and is more than fair wear and tear and that the tenant is liable for same. I do not consider that the damage caused by the 3m hook is fair wear and tear, because it is analogous to the tenant hanging a picture in the property. There is an obligation to make good any hole in the wall caused by that. Therefore, if the tenant hangs a 3M hook and on removal it damages the property then they are liable for the cost remedying the damage.

Whilst I am satisfied that the tenant is liable for the damage, I am not satisfied that the landlord has proven the total amount claimed for its losses. The Tribunal sees damage claims on a daily basis, and I consider the amount claimed for these losses to be excessive when compared to other accounts I have seen for similar damage, which I would categorise as minimal. In addition, whilst the landlord told me that the black marks needed to be painted over, those types of markings are often able to be easily cleaned off.

I also do not consider it necessary to paint over slight damage such as that in the wardrobe from the 3M hooks in between each tenancy. I accept that the damage in the stairwell needed remediation, and that there are some cost savings from having the painters remedy all the outstanding issues at once. I must factor in 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.

I have awarded the landlord $350.00 for this damage. This is mainly for the repair of the gouge and hole in the stair well. The carpet

The tenant accepts that the damage was damaged by a small spill of nail polish, which needed to be removed. She queried the cost because she had been told that it would be $167.11. but when she got the invoice, it was $224.25. There is a simple explanation for this, the property manager had deducted the credit amount of $57.14 - held in the account to the tenant’s credit from the invoice. The tenant is liable for the total invoice of $224.25.

The amounts ordered are proved. Filing fee

Because Ray White Remuera Property Management Limited As Agent For Fortuna Trust has substantially succeeded with the claim I have reimbursed the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4813262 — net $537.55 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning	$224.25		Carpet Cleaning
Repairs: and painting	$350.00		Repairs: and painting
Filing fee reimbursement	$20.44		Filing fee reimbursement
Rent credit		$57.14	Rent credit
Total award	$594.69	$57.14
Net award	$537.55
Total payable by Tenant to Landlord	$537.55

Both parties attended the hearing held on the 5 July 2024.

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

The tenancy ended on the 21 December 2023.

The landlord applied to the Tribunal on the19 February 2024 seeking costs of damage to the property which it says was caused by the tenant during her tenancy.

Is the tenant responsible for the damage to the premises?

I have awarded the landlord $350.00 for this damage. This is mainly for the repair of the gouge and hole in the stair well. The carpet

The amounts ordered are proved. Filing fee

Because Ray White Remuera Property Management Limited As Agent For Fortuna Trust has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4813262 — Property damage at Unit/Flat 4, 37 Hanene Street, St Heliers, Auckland 1071

At a glance

Tenancy Tribunal case 4813262 — Property damage at Unit/Flat 4, 37 Hanene Street, St Heliers, Auckland 1071

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

Property management

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

Property management

Frequently asked questions