What was Tenancy Tribunal case 4818557 about?

The tribunal order states: The tenant’s name and identifying details must not be published.

How much money was awarded in case 4818557?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4818557?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4818557?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10513727-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4818557 about?

The tribunal order states: The tenant’s name and identifying details must not be published.

How much money was awarded in case 4818557?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4818557?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4818557?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10513727-Tribunal_Order_Redacted.pdf.

Unit D05, 71 Spencer Road, Oteha, Auckland 0632, Tenancy Tribunal Case 4818557 — Property damage

Order

The tenant’s name and identifying details must not be published.
The Bond Centre is to pay the balance of the bond of $690.00 to [the tenant] immediately.
All claims are dismissed.

Reasons

Mark Kelly and Marissa Pajudpod attended the hearing for Northside Property Management. Stephen Kyne, one of the owners also attended.
The tenant attended in person.
Most of the parties’ claims were resolved in mediation. Two claims remain. The landlord claims for damage to a stovetop. The tenant claims compensation for the landlord’s termination notice being unlawful.

Is the tenant liable for damage to the stovetop?

It is not disputed that the glass stovetop has a small chip and a what looks like a hairline crack on one corner. The damage is barely noticeable. Ms Pajudpod did an exit inspection on 6 February 2024 and did not notice it. The tenant says she noticed the chip during the tenancy. She does not recall causing the chip during the tenancy but cannot say that the chip was whether the chip was present before the tenancy began
The stove continues to work, and the premises has been re-tenanted with the stove as it is. Legal principles
The landlord must prove that damage to the stovetop 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. 1
Tenants are liable for the actions of people at the premises with their permission. 2
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. 3 1 Residential Tenancies Act 1986 (RTA), ss 40(2)(a), 41. 2 RTA, s 49B. 3 RTA, s 49B(3)(a). Discussion
The landlord’s entry photographs do not show any damage.
The photographs were taken with cell phone. Because the quality of cell phone images is limited, I am not confident that the stove top was undamaged at the beginning of the tenancy.
However, the standard of proof is only on the balance of probabilities. It is more probable than not that the stove top was not perceptibly damaged at the beginning of the tenancy.
It follows, I find it proven to the required standard that the stovetop was damaged during the tenancy.
The damage has the appearance of being more than fair wear and tear. A chip and a crack would not be expected as a consequence of prudent use. The damage could arise from normal careful use if for example, the stove top were installed poorly or roughly, or a previous tenant had weakened the stovetop by imprudent use, but those scenarios are less probable than not having regard to the damage itself.
I turn to the issue of whether the tenant has proved she did not carelessly damage the stovetop. The test is whether she used the stovetop in a less than reasonably prudent fashion that caused the damage.
Sometimes by the very nature of the damage, carelessness is obvious, ipso facto. For example, if there is a fist-sized hole in a wall it can readily be inferred that the damage was caused intentionally or carelessly.
In this case, the chip is tiny, and the crack was barely perceptible during and at the end of the tenancy. A mechanism other than one involving careless use may have used the damage, so carelessness cannot be inferred ipso facto. The possibility of damage prior to the tenancy has not been excluded altogether, but only on the balance of probabilities. The stovetop may have had a manufacturing or a design fault or have been poorly installed. In respect to the stovetop’s design, I note that it does not have a metal protective trim as might be thought desirable, so even though the glass is toughened it is more vulnerable to damage than it otherwise would be.
The landlord considers the tenant is a good tenant in general. There is no evidence of other damage at the premises consistent with the tenant being rough or disrespectful towards the premises. The damage does not suggest a massive force caused it. The tenant presented as a quiet, neat, and tidy, conscientious person. She says she never used the stovetop roughly or carelessly. There is no clear evidence to contradict the tenant’s claim.
I found the tenant’s evidence plausible. Considering all of the evidence submitted, I find it more likely than not that the tenant did not carelessly or intentionally cause the damage.
It follows, the landlord’s claim is not proven. The tenant is not liable for the cost of the damage. Was the landlord’s termination notice unlawful?
The tenant claims that the landlord terminated the tenancy on spurious grounds.
The landlord’s 90-day notice was given on 1 November 2023 for the purposes of extensive refurbishment, or repairs.
The landlord relet the premises on 16 March 2024, six weeks after the tenant moved out.
Under s 60AA of the RTA, a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
If landlords breach this obligation without reasonable excuse, they commit an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00.
Mr Kyne gave evidence that he did extensive renovation work at the premises over four weeks annual leave. I sighted a video taken during the works, showing the premises’ walls had been sanded and plastered in readiness for painting and all of the electrical fittings removed. Mr Kyne, who is a qualified engineer may be capable of doing quality renovation work, but he would probably take much longer to do the work than experienced contractors.
I am satisfied that the landlord’s stated reason for terminating the tenancy was genuine.
This claim is not proven. It is dismissed. Non-publication
The tenant seeks non-publication of her identifying details.
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. 4
The tenant has substantially succeeded in the proceedings by defending the landlord’s claims. I do not consider that publication in in the public interest or is justified by the tenant’s conduct or any other circumstances.
Non-publication is ordered.

Order

The tenant’s name and identifying details must not be published.
The Bond Centre is to pay the balance of the bond of $690.00 to [the tenant] immediately.
All claims are dismissed.

Reasons

Mark Kelly and Marissa Pajudpod attended the hearing for Northside Property Management. Stephen Kyne, one of the owners also attended.
The tenant attended in person.
Most of the parties’ claims were resolved in mediation. Two claims remain. The landlord claims for damage to a stovetop. The tenant claims compensation for the landlord’s termination notice being unlawful.

Is the tenant liable for damage to the stovetop?

It is not disputed that the glass stovetop has a small chip and a what looks like a hairline crack on one corner. The damage is barely noticeable. Ms Pajudpod did an exit inspection on 6 February 2024 and did not notice it. The tenant says she noticed the chip during the tenancy. She does not recall causing the chip during the tenancy but cannot say that the chip was whether the chip was present before the tenancy began
The stove continues to work, and the premises has been re-tenanted with the stove as it is. Legal principles
The landlord must prove that damage to the stovetop 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. 1
Tenants are liable for the actions of people at the premises with their permission. 2
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. 3 1 Residential Tenancies Act 1986 (RTA), ss 40(2)(a), 41. 2 RTA, s 49B. 3 RTA, s 49B(3)(a). Discussion
The landlord’s entry photographs do not show any damage.
The photographs were taken with cell phone. Because the quality of cell phone images is limited, I am not confident that the stove top was undamaged at the beginning of the tenancy.
However, the standard of proof is only on the balance of probabilities. It is more probable than not that the stove top was not perceptibly damaged at the beginning of the tenancy.
It follows, I find it proven to the required standard that the stovetop was damaged during the tenancy.
The damage has the appearance of being more than fair wear and tear. A chip and a crack would not be expected as a consequence of prudent use. The damage could arise from normal careful use if for example, the stove top were installed poorly or roughly, or a previous tenant had weakened the stovetop by imprudent use, but those scenarios are less probable than not having regard to the damage itself.
I turn to the issue of whether the tenant has proved she did not carelessly damage the stovetop. The test is whether she used the stovetop in a less than reasonably prudent fashion that caused the damage.
Sometimes by the very nature of the damage, carelessness is obvious, ipso facto. For example, if there is a fist-sized hole in a wall it can readily be inferred that the damage was caused intentionally or carelessly.
In this case, the chip is tiny, and the crack was barely perceptible during and at the end of the tenancy. A mechanism other than one involving careless use may have used the damage, so carelessness cannot be inferred ipso facto. The possibility of damage prior to the tenancy has not been excluded altogether, but only on the balance of probabilities. The stovetop may have had a manufacturing or a design fault or have been poorly installed. In respect to the stovetop’s design, I note that it does not have a metal protective trim as might be thought desirable, so even though the glass is toughened it is more vulnerable to damage than it otherwise would be.
The landlord considers the tenant is a good tenant in general. There is no evidence of other damage at the premises consistent with the tenant being rough or disrespectful towards the premises. The damage does not suggest a massive force caused it. The tenant presented as a quiet, neat, and tidy, conscientious person. She says she never used the stovetop roughly or carelessly. There is no clear evidence to contradict the tenant’s claim.
I found the tenant’s evidence plausible. Considering all of the evidence submitted, I find it more likely than not that the tenant did not carelessly or intentionally cause the damage.
It follows, the landlord’s claim is not proven. The tenant is not liable for the cost of the damage. Was the landlord’s termination notice unlawful?
The tenant claims that the landlord terminated the tenancy on spurious grounds.
The landlord’s 90-day notice was given on 1 November 2023 for the purposes of extensive refurbishment, or repairs.
The landlord relet the premises on 16 March 2024, six weeks after the tenant moved out.
Under s 60AA of the RTA, a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
If landlords breach this obligation without reasonable excuse, they commit an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00.
Mr Kyne gave evidence that he did extensive renovation work at the premises over four weeks annual leave. I sighted a video taken during the works, showing the premises’ walls had been sanded and plastered in readiness for painting and all of the electrical fittings removed. Mr Kyne, who is a qualified engineer may be capable of doing quality renovation work, but he would probably take much longer to do the work than experienced contractors.
I am satisfied that the landlord’s stated reason for terminating the tenancy was genuine.
This claim is not proven. It is dismissed. Non-publication
The tenant seeks non-publication of her identifying details.
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. 4
The tenant has substantially succeeded in the proceedings by defending the landlord’s claims. I do not consider that publication in in the public interest or is justified by the tenant’s conduct or any other circumstances.
Non-publication is ordered.

Tenancy Tribunal case 4818557 — Property damage at Unit D05, 71 Spencer Road, Oteha, Auckland 0632,

At a glance

Tenancy Tribunal case 4818557 — Property damage at Unit D05, 71 Spencer Road, Oteha, Auckland 0632,

At a glance

Claims & awards

Order

Reasons

Is the tenant liable for damage to the stovetop?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is the tenant liable for damage to the stovetop?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions