Published tribunal order
Tenancy Tribunal case 4830340 — Property damage at 12 Bradford Street, Cromwell, Cromwell 9310
Decided 10 Jun 2024 · Published 10 Jun 2024 · Application 4830340
- Property damage
Reasons
- Both parties attended the hearing. The Tenant attended by telephone and the Landlord attended in person.
- The Landlord applied for refund of the bond, rent arrears, compensation, exemplary damages, disposal of the Tenants goods, reimbursement of the filing fee. The Tenant applied for compensation for unlawful disposal of her goods and reimbursement of the filing fee.
- At the start of the hearing, the Tenant sought an adjournment to obtain legal representation as the Landlord’s claims exceeded $6,000.00. The Landlord withdrew their claim for loss of rent in order to have the matter finalised at this hearing.
- The parties agreed during the hearing to the following: a. The Tenant would pay the landlord $311.00 to replace the locks; b. The Tenant would pay the Landlord $365.70 being half the costs to remove her belongings; c. The Tenant agreed to send the Landlord the garage key by 4.30pm on 10 May 2024. Tenants claims
- The Tenant claimed the Landlord unlawfully disposed of her goods left when the tenancy ended on 21 February 2024. A list of all of her personal belongings left behind was provided which included plants, building materials, queen mattresses, goldfish, vacuum cleaners, gib board, working televisions, bicycles, drills, garden tools, barbeque, axolotl tank, a work desk, posturepedic mattress, laptop, trikes, bicycles, kitchen shelf, dryers and a brand new toilet. The Tenant equated the total value of her loss to be near the amount of $30,000.00. The Tenant did not provide evidence of the value of the goods or what she had paid for it such as invoices and receipts. The Tenant acknowledged she did leave behind some rubbish in addition to the goods. She submitted she was unable to collect her goods by the deadline provided by the Landlord which was 4.30pm on 24 February 2024. A lot of the goods left behind she was holding in the garage for someone to repair.
- The Landlord claimed the majority of goods left behind were broken and some were stolen. Photographs of the property at the end of the tenancy showed the goods left behind however it was unable to be determined whether these were in working order or not. The Landlord submitted the axolotl tank had no plugs, one bicycle was broken, the air fryer was broken, they never saw the laptop, the Posturepedic mattress was filthy, the single bedframe was broken, the dishes were filthy, one television had no cord and the other was smashed, the kitchen shelving was falling into pieces, some of the plants were shrivelled and died, the tools did not work or had plugs ripped out. They gave away many of these items. The Landlord submitted they still had the vacuum and barbeque but the trade tools were stolen. The Landlord submitted they followed the process prescribed by Tenancy Services before disposing of the items but did not have an independent expert value the goods.
- The Tenant must prove the loss of the goods that were disposed of. The landlord must also follow a process in disposing of the Tenant’s goods which includes making all reasonable efforts to assess the market value of the goods. This would be for example evidence from a valuer, second hand dealer, scrap merchant or value of similar items from advertisements, trade Me or other online trading sites. See section 62A(1) Residential Tenancies Act 1986 (“RTA”). If the assessment indicates the good have a value below the cost of storing, transporting and selling them, the landlord may immediately dispose of the goods in anyway the landlord thinks fit. See section 62A(2). If the assessment shows the goods have a value above the cost of storing, transporting and selling, the landlord must store them for a minimum of 35 days from the date the Landlord took possession of them. If the Tenant claims any of the goods, the Landlord may require the tenant to pay the actual costs of storage. Section 62A(3) and (4) RTA.
- In considering the evidence, the Tenant did not prove the value of her goods that were left behind in the form of receipts, invoices. It was therefore difficult to determine the loss which the Tenant must prove. The Landlord disposed of many of the items without providing evidence from a valuer but relied on their own assessment of the goods. The Tenant should be compensated for their loss however due to the scarcity of evidence as to what this is, I find the Landlord it reasonable to award the Tenant the sum of $750.00 as compensation.
- The amount ordered is proved. Landlords claims Compensation a) Filing fee
- The Landlord applied for compensation for the filing fee from the previous application. This should have been claimed at the time of that hearing so this claim is dismissed. b) Property application fee
- The Landlord has applied for reimbursement of a fee of $200.00 paid to start the process of seizing the Tenant’s property due to non-payment of a previous Tribunal for rent arrears. The Landlord provided a receipt for payment.
- To avoid the Landlord being awarded this fee twice, through the process they have initiated and through this application, the Tribunal declines the making of this Order. Labour to remove the Tenant’s goods and rubbish from the property
- The Landlord claimed $1575.00 to clear the house and grounds of abandoned waste. This was the cost of five people at a rate of $35.00 per hour over a period of nine hours to clear the house. It included the rental of a dump truck and they had two friends assist with the removal because the items were big. One truckload was full of scrap met and this did not include the perishables they had to dispose of, the five wheelie bins and four black rubbish bags, time or fuel. This included filling up five truckloads of goods and there was approximately 1 tonne dumped at the local refuge station which was of scrap value. The cleaning had not commenced yet. The Landlord provided photographs of the property at the exit inspection which indicated there was a substantial amount of goods and rubbish left behind. There were also photographs of the truckloads of rubbish and receipts from the Refuge station for the rubbish disposal.
- The Tenant submitted previously that this was not all rubbish but were goods waiting to be repaired or were in good working order. The Tenant also claimed that it should have only taken one person eight hours at a rate of $25.00 per hour to remove the rubbish. The Tenant however previously agreed to paying for half of the rubbish fees being $365.40.
- In considering the evidence, the Landlord did not follow the correct procedure in disposing of the Tenant’s goods by failing to reasonably assess the goods. There is no evidence to determine which of the items were rubbish and which items had value. The necessity to hire dump trucks, pay for rubbish disposal and amount of labour is unsubstantiated. There was also no invoice for the labour provided. However I find the Tenant has acknowledged responsibility for the costs of half of the rubbish fees and the Tenant should therefore pay some of these costs. I find the appropriate amount to award is $750.00.
- The amount ordered is proved. Claim for unpaid leave to attend tenancy hearings
- The Landlord claimed for unpaid leave of $270.00 to attend the previous tenancy hearing on 15 February 2024. The Landlord submitted they had a casual farm job position and were paid $30.00 per hour.
- The Tenant submitted there was no evidence in the form of payslips to prove the Landlord had lost this amount of earnings.
- In considering the evidence, the Landlord should have submitted this claim at the previous hearing and attending Tribunal hearings is a Landlord obligation within the ordinary course of their role. Where disputes cannot be resolved between the parties than, an application to the Tribunal is not outside of the scope of their obligations.
- The claim is dismissed. Claim for time administration fees to remove rubbish
- The Landlord claimed $270.00 for the time taken off to organise the removal of the Tenant’s goods, consulting with Tenancy Services and insurance. The Landlord submitted they were on a casual wage and did not get annual leave so they lost income from the time they spent organising this.
- Again, I refer to paragraph 19 and find that this is another obligation which arises in the ordinary course of their role as a Landlord. The Landlord has a duty to mitigate their losses so ensuring that the perishables and contaminated items were removed is in the ordinary course of their role.
- The claim is dismissed. Claim for compensation for refusing entry for house inspections
- The Landlord has claimed compensation for this however it is noted that this issue was determined in the previous hearing on and it was found that the Tenant had reasonable excuses for this. A claim cannot be brought twice before the Tribunal.
- The claim is dismissed. Claim for curtain cleaning
- The Landlord claimed compensation for curtain cleaning due to the curtains having a stench of fish and a thin film of black residue. The main issue was the smell as to why they needed to be cleaned. The Landlord provided an invoice for the cleaning but it did not indicate what required cleaning and there was no ingoing inspection report to show the curtains were in a clean condition at the start of the tenancy. The Landlord submitted the house was like brand new at the start of the tenancy and the previous Tenants had their entire bond refunded. No evidence was provided of this.
- The Tenant claimed there was no initial inspection report and whilst she cannot guarantee all the curtains were cleaned when she left the property, she submitted there was no evidence these marks could not be removed by washing the curtains in a washing machine. She submitted she cleaned these in the washing machine regularly.
- In considering the evidence, without an ingoing inspection report, a photograph of the black residue at the end of the tenancy or confirmation from the cleaners or third party that the curtains had a strong stench, there is no proof that the issue existed or was caused during the Tenant’s tenancy. Had the Landlord provided evidence from the cleaner that the quote was to specifically remove the odour and black residue, this would have assisted the Landlord’s claim.
- The claim is dismissed. Claim to reinstate the back lawn
- The Landlord claimed $80.21 to reinstate the grass area which the Tenant failed to maintain. Photographs were provided of the lawn at the end of the tenancy which was patchy because the Tenant had a swimming pool on it. The Landlord needed to purchase gardening items to reinstate the back lawn. There was no photographs of the lawn at the start of the tenancy to compare.
- The Tenant disputed this claim stating the Landlord should have installed an irrigation system and many of the neighbours lawns were in similar condition. This lawn was typical of Otago due to the weather at the time.
- In considering the evidence, the Landlord di dnot provide evidence to substantiate the condition of the lawn at the start of the tenancy. The Tribunal is unable to confirm therefore whether the Tenant failed to maintain it.
- The claim is dismissed. Exemplary damages
- [The landlord/s] and [The landlord/s] claims the tenant did not vacate the premises on the date the tenancy ended.
- A tenant must vacate the premises on the termination of the tenancy. See section 40(1)(e)(i) of the Residential Tenancies Act 1986.
- Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 40(3A)(a) and Schedule 1A Residential Tenancies Act 1986.
- The tenant left their belongings at the property when they vacated.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.
- The Tenant claimed the Landlord had sent her a notice on 24 February 2024 at
- 00pm requesting she collect her personal items and to respond by 25 February 2024. On the 25 February 2024, the Tenant was unable to sort a trailer to collect her items. The Landlord submitted the Tenant had ample time to organise this and because they had not had access to the property in a long time, they needed access to limit any possible damage. The Tenant was also evicted on 21 February 2024 at 12.00pm so the Tenant had six days to organise the removal of her belongings.
- The Tenant intended to leave the property but due to the volume of her personal belongings, she could not do this quickly. She did however attempt to move out.
- In considering the Landlords claim, I find because the Tenant lacked the intention to breach the unlawful act, which is a requirement for exemplary damages, the claim is dismissed.
- As [The landlord/s], [The landlord/s] has not been substantially successful with their claim, the Landlords shall pay their own filing fee.
- As the Tenant has been successful in their claim, the Landlord shall pay their filing fee.
- Name suppression was not sought by either party so this has not been granted.