What was Tenancy Tribunal case 4837247 about?

The tribunal order states: The tenancy of [The tenant/s] and [The tenant/s] at 7 Taksan

How much money was awarded in case 4837247?

Filing Fee: $20.44 awarded to landlord; Property Damage: $3,622.88 awarded to landlord; Rent Arrears: $3,287.00 awarded to landlord

What type of tenancy dispute was case 4837247?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4837247?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10636751-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4837247 about?

The tribunal order states: The tenancy of [The tenant/s] and [The tenant/s] at 7 Taksan

How much money was awarded in case 4837247?

Filing Fee: $20.44 awarded to landlord; Property Damage: $3,622.88 awarded to landlord; Rent Arrears: $3,287.00 awarded to landlord

What type of tenancy dispute was case 4837247?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4837247?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10636751-Tribunal_Order.pdf.

7 Taksan Place, Pukete, Hamilton 3200 Tenancy Tribunal Case 4837247 — Property damage

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Order

Claims and awards in Tenancy Tribunal application 4837247 — net $4,570.32 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 02 August 2024	$3,287.00	Rent arrears to 02 August 2024
Repairs	$3,622.88	Repairs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,570.32
Total payable by Tenant to Landlord	$4,570.32

The tenancy of [The tenant/s] and [The tenant/s] at 7 Taksan Place, Pukete, Hamilton 3200 is terminated, and possession is granted to Just A Dream Limited, at midnight on Friday 02 August 2024.

The Bond Centre is to pay the bond of $2,360.00 (63329939-003) to Just A Dream Limited immediately.

[The tenant/s] and [The tenant/s] must pay Just A Dream Limited $4,570.32 immediately, calculated as shown in the table below:

Reasons

The tenancy commenced on 16 December 2023, and is periodic. On 15 March 2024, the landlord filed an application seeking termination of the tenancy and compensation for damages. The matter was listed for hearing on 01 June 2024. On that date, Ms Jones appeared for the landlord. Ms Durham appeared for the tenant.

The grounds for termination were that the landlord had issued at least eight notices for recidivist rent arrears, section 55(1)(aa) of the Residential Tenancies Act 1986 (The “Act”) and two 14-day breach notices, section 56(1) of the Act. A careful analysis of the rent summary revealed that since early January 2024, the tenant had been just over one week in arrears, increasing to just over two weeks from 03 May 2024.

The landlord uses a property management application. The address for service for the tenant is an email address. All notices sent to the tenant regarding the tenancy, including the recidivist rent notices and breach notices, are sent via the application, which generates an email message which contains a link to the notice. The tenant can view the notice upon opening the link.

An issue arose as to whether this method of service satisfied the requirements under section 136(1)(d) of the Act, which states that notices may be sent to an email address provided by the party as an address for service. However, there was insufficient time to deal with the claims and evidence, and the matter was adjourned part heard.

Ms Jones has again appeared for the landlord, but there has been no appearance by the tenant.

Since the last hearing, the landlord has issued nine more recidivist rent notices and another 14-day breach notice for rent arrears. An up to date rent summary has been produced showing that the tenant has continued to fall behind, with rent arrears now totalling $3,287.00, equivalent to five and a half weeks rent.

In addition to the actual notices, the landlord has produced a record of the date and time the notices were sent, the email addresses to which the notices were sent, which is the email addresses for service of both tenants recorded in the tenancy agreement, the date and time the tenant opened the email, and the date and time the tenant clicked onto the link accessing the notice.

The landlord states that the tenant has also used the application to communicate with the landlord.

The landlord states that the additional 14-day breach notice and recidivist rent notices sent following the adjournment have each been sent via the application, and in separate emails as attachments.

Based on the evidence, I am satisfied that the tenant has been properly served. In my opinion notices served to an email address for service may be in the body of the email itself, as an attachment to the email, or, as they are in this case, via a link contained in the email.

Under section 55(1) (aa) of the Act the Tribunal shall terminate a tenancy where: a. on 3 separate occasions within a 90-day period the rent has been at least 5 working days in arrear; and b. on each occasion the landlord gave the tenant written notice advising the tenant of the arrear, the dates for which rent was overdue, the amount or amounts of overdue rent, and the tenant’s right to make an application to the Tribunal challenging the notice; and c. each notice stated how many other notices (if any) the landlord had given the tenant under this paragraph in relation to the same tenancy and 90-day period; and d. the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice.

In this case I am satisfied the landlord has served notices on the tenant as required in the Act, and the application to the Tribunal was made within 28 days of the date of the third notice.

Under section 56(1) of the Act the Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate.

Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.

Section 55 and 56 (2) of Act the provides where a landlord applies to terminate for breach and rent is at least 21 days in arrears on the hearing date, the Tribunal must terminate the tenancy.

The rent in this case is more 21 days in arrears at the hearing date.

The grounds for termination have been established under both section 55(1) (aa) and section 55(2) of the Act.

The tenancy is terminated, and possession granted to the landlord at midnight on Friday 02 August 2024

The rent record provided shows the amount owing at the end of the tenancy, as ordered above. Damage

The property was constructed in 1989 and has a fibrolite exterior. The landlord claims that the tenant is responsible for damage to the fibrolite boards enclosing the underfloor subspace and parts of the exterior walls, as well as damage to the laundry door handle. The landlord submits the damage has occurred during the tenancy and that it is more than fair wear and tear.

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.

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.

The landlord has produced a pre tenancy inspection report, including photographs of the exterior of the property, and an additional photograph showing some pre-existing damage to an area of subspace fibrolite. The landlord states that the intention was to have this area of fibrolite repaired shortly after the commencement of the tenancy, but it was further damaged before that could occur.

The agreement allows for the tenant to have dogs. At the previous hearing, the tenant stated that the dogs worsened the damage by accessing underneath the house through the damaged section. In total, the landlord has provided evidence of four areas of discrete damage to either the subfloor fibrolite or the fibrolite walls of the house. There is also evidence of damage to the access door underneath the house.

After considering the evidence, which includes four inspection reports, I am satisfied that the damage to the exterior of the house and subfloor has occurred during the tenancy, and that it is more than fair wear and tear. I am also satisfied that the damage was more likely than not caused by the dogs. As the owner of the dogs, the tenant is responsible for any damage they cause.

The landlord states that while they have insurance for damage caused by tenants, it does not cover damage caused by animals. This appears to be a standard clause in most insurance policies.

The quote to repair the damage has been itemised. The amount claimed to repair the area with pre-existing damage is $1,227.73 (GST exclusive). Based on the photographs of the initial damage the building contractor engaged estimates that it would have initially cost around $400.00 (GST exclusive) to repair. On that basis, I reduce that part of the claim to $827.73 (GST exclusive).

Regarding the access door to the subspace, the property is thirty-five years old. The door concerned is an original feature. The repair will reframe and replace the door, which will result in betterment. Therefore, I reduce the amount claimed by 50%, and award the landlord half of the amount claimed, which is $346.78 (GST exclusive).

The other amounts claimed to repair the other damaged areas are reasonable. Only the damaged areas are to be repaired, and on that basis the tribunal makes no further deduction for betterment.

The landlord has produced a photograph of the laundry door handle, which has been pulled away from the door. The handle could not be re attached and needs replacement. On the evidence, I am satisfied that the door handle has been damaged during the tenancy and that the damage was more than fair wear and tear. The tenant has stated that the damage was caused by a young occupant who had a habit of hanging off the handle. Tenants are responsible for damage caused by those at the property with their permission. The amount claimed to replace the handle, material, and labour, is $159.98 (GST exclusive). The handle was new at the commencement of the tenancy, and I make no deduction for betterment.

The total amount awarded to repair all damages claimed, after deductions for the pre-existing damage and betterment, is $3,150.33 (GST exclusive) or $3,622.88. Costs

Because Just A Dream Limited has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression

Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.

Although entitled, the landlord does not seek name suppression, and no orders are made.

Order

Claims and awards in Tenancy Tribunal application 4837247 — net $4,570.32 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 02 August 2024	$3,287.00	Rent arrears to 02 August 2024
Repairs	$3,622.88	Repairs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,570.32
Total payable by Tenant to Landlord	$4,570.32