What was the outcome of Tenancy Tribunal case 4839870?

The tribunal order states: Rachael Penman to pay Bayleys Real Estate Limited As Agent For Jm

How much money was awarded in case 4839870?

Property Damage: $400.00 awarded to landlord

What type of tenancy dispute was case 4839870?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4839870?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10713010-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4839870?

The tribunal order states: Rachael Penman to pay Bayleys Real Estate Limited As Agent For Jm

How much money was awarded in case 4839870?

Property Damage: $400.00 awarded to landlord

What type of tenancy dispute was case 4839870?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4839870?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10713010-Tenancy_Tribunal_Order.pdf.

Unit/Flat 3, 11 Faulkner Road, Northcote Point, Auckland Tenancy Tribunal Case 4839870 — Property damage

Claims and awards in Tenancy Tribunal application 4839870 — net $400.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: (insurance excess for bedroom door hole repair	$400.00	Repairs: (insurance excess for bedroom door hole repair
Net award	$400.00
Bond	$3,300.00
Total payable by Tenant to Landlord	$400.00

Order

Rachael Penman to pay Bayleys Real Estate Limited As Agent For Jm Property Holdings Ltd $400.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $3,300.00 (6430923-001) immediately apportioned as follows: Bayleys Real Estate Limited As Agent For Jm Property Holdings Ltd: $400.00 Rachael Penman: $2,900.00

Reasons

Both parties attended the hearing.
The landlord has applied for compensation, partial refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

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 careless, and occurs after 27 August 2019, section 49B RTA 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) 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 following damage was caused during the tenancy: a. Stains on the upstairs bedroom carpet; b. Stains on the downstairs bedroom carpet; c. Stains on the vanity; d. Hole in bathroom door; and e. Broken latch on dishwasher.
The landlord says that this damage was as a result of the tenant’s careless acts or omissions during the tenancy, that their insurer classified the damage as being more than fair wear and tear and that the tenant should be held liable for the insurance excess the landlord had to pay to get the damage repaired.
The tenant argued the house was built in the 1980’s and that although there had been some further damage during the tenancy many of the claims were for items that were considerably worn and, in some cases, stained at the start of the tenancy.
The tenant produced photographs of the premise at the start of the tenancy that she had sent to the property manager a month after the tenancy commenced. These photographs show the downstairs bedroom carpet had significant staining on it and that it was extremely worn, pulling away from the walls and had mould growing in it that had also left mould stains.
The tenant says she was concerned that the house was not in a reasonably clean and tidy condition when she rented it, so she engaged a professional cleaner to clean the house generally and clean the carpets throughout the house. The cleaner was not able to remove the mould and other stains of the downstairs bedroom carpet. The tenant says she was happy to rent the house as it was, excepted it was an old house that was not pristine and was prepared to have it cleaned at the start of the tenancy.
The tenant has chosen not to make a cross application, when the evidence she has given suggested she could have, as she has taken a pragmatic, fair and reasonable approach to her tenancy of an old house that she has described as needing some repairs and renovation. As such, she readily agreed to pay the insurance excess cost for the hole in the bathroom door as she says it was damaged during a medical emergency event and considers it to be her responsibility to compensate the landlord for that damage. Downstairs bedroom carpet
The entry inspection photographs show there were some significant stains on this bedroom carpet at the start of the tenancy. The photographs the tenant took at the start of the tenancy also show the bedroom carpet had significant stains on it at the start of the tenancy.
The exit inspection photographs show there was an additional red stain in the corner of the carpet that was not there at the start of the tenancy. The tenant accepted this stain occurred during the tenancy. She stated she had tried to get the stain removed but, like the pre-tenancy stains, it did not come out.
The tenant says the damage is in a room her teenage son inhabited and that she had put him in the bedroom with carpet that was well overdue for replacement, that was worn, coming away from the walls, had no underlay, was damp and had mould stains so that if he accidentally dropped something that there would not be an issue with the carpet.
I am satisfied that the damage the tenant’s son did to the carpet in the downstairs bedroom added to significant stains that were already on the carpet when the tenancy started. The photographic evidncec provided by both parties also shows that the carpet is at least 40 years old, is worn, mouldy, coming away from the wall and in places the carpet tacks were sticking out of the floorboards.
This carpet was in need of replacement at the time the tenancy commenced, and it was not replaced by the owners.
The property manager informed me the owners have moved back into the premise themselves and are carrying out some remedial work to the property.
Given the landlord is seeking the $400.00 excess for full replacement of over 40-year-old carpet that the tenant has proven was not in a reasonable condition at the start of the tenancy, I dismiss the landlord’s claim as the carpet was in need of full replacement before the tenancy commenced. Upstairs bedroom carpet
The photographs provided by both parties show the rust mark on the upstairs bedroom carpet came for the tenant’s wooden bed base. She says her bed base had not left a mark like that in her prior tenancies and it was not reasonably foreseeable that the bed base would mark the carpet.
I find that this damage, although caused during the tenancy, was accidental damage rather than intentional or careless damage. As such, I am satisfied the tenant is not liable for the $400.00 insurance excess to replace the 40-year-old worn carpet in that bedroom and dismiss the landlord’s claim for lack of proof the damage was intentional or careless. Bathroom Vanity
The landlord says the pink and orange marks on the vanity were because of careless acts or omissions by the tenant during her tenancy.
The photographic evidence shows these marks were not present at the start of the tenancy and the tenant says they were not there when she was cleaning the vanity during her tenancy.
The tenant says she had a white enamel coated metal container in which she kept her personal products and toothbrush etc in the bathroom during the tenancy. She did so in order to prevent these products marking the very old and porous vanity, that she says was hard to keep clean because the surface of it was worn, porous and easily absorbed things. She says she does not know how the stains may have occurred as she took all reasonably practicable steps to protect the old worn surfaces.
The tenant produced photographs from the start of the tenancy that show the vanity had seen better days and was overdue for replacement. It appears to be the original vanity form the 1980 era.
Given the age and condition of the vanity at the beginning of the tenancy, it is likely the owners would want to replace it before moving into the house themselves. I am satisfied the tenant did not intentionally or careless cause the damage to the vanity and she should not be liable for the $400.00 insurance excess fee for the landlords to replace the 40 plus year old vanity with a new one at the tenant’s expense. This claim is dismissed. Dishwasher latch
The property manager confirmed the tenant called her a month before the tenancy ended to tell her that when she had opened the dishwasher door she had found a screw had come loose and fallen into the bottom of the dishwasher and the latch was broken. The tenant and property manager confirmed the screw was thread bear and unable to be screwed back in and the broken latch meant the dishwasher door could not be closed and the dishwasher became unusable.
The property manager was unable to get the dishwasher fixed as it was 15 to 20 years old and the parts are no longer available. This meant the dishwasher had to be replaced.
The tenant did not cause this damage. The screw and latch failed because of decades of fair wear and tear. I am surprised the landlord has sought to claim the $400.00 insurance excess to get the dishwasher relaced with a new one but did not offer the tenant any sort of rent reduction for the loss of amenity and inconvenience of not being able to use the dishwasher in the last 4 weeks of her tenancy. This is an amenity that she was paying rent to avail herself of.
I dismiss the landlord’s claim for failure to prove the tenant’s liability for the damage to the dishwasher latch. Bathroom door
The tenant has agreed the damage to the bathroom door is more than fair wear and tear, she has accepted liability for the damage and has agreed to pay the $400.00 insurance excess to have the bathroom door repaired.
The amount ordered is proved. Reimbursement of the filing fee
Section 102(4) of the RTA confirms the Tribunal may reimburse the filing fee to an applicant that is wholly or substantially successful in its claims.
The landlord came to the Tribunal seeking claims for issues it could have talked to the tenant about and come to a reasonable agreement on. The tenant had evidence and a sound explanation for the damage claims raised in this hearing. She accepted responsibility for a claim that I may not have awarded anything for if the damage to the bathroom wall was not intentional or careless. The tenant informed me the damage occurred because of a medical emergency. We did not delve into this claim as the tenant was happy to accept liability for it.
The property manager was the dishwasher broke because of its age and because of fair wear and tear but advocated for the owners claim that the damage was intentional or careless.
The landlord could have achieved the same award as I have made today by having a full and frank discussion with the tenant and being realistic about the age and condition of the items, they came to the Tribunal asking the tenant to pay to have replaced. As such, the landlord has not been wholly or substantially successful in its claims and its application for reimbursement of the filing fee is dismissed.

Claims and awards in Tenancy Tribunal application 4839870 — net $400.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: (insurance excess for bedroom door hole repair	$400.00	Repairs: (insurance excess for bedroom door hole repair
Net award	$400.00
Bond	$3,300.00
Total payable by Tenant to Landlord	$400.00

Order

Rachael Penman to pay Bayleys Real Estate Limited As Agent For Jm Property Holdings Ltd $400.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $3,300.00 (6430923-001) immediately apportioned as follows: Bayleys Real Estate Limited As Agent For Jm Property Holdings Ltd: $400.00 Rachael Penman: $2,900.00

Reasons

Both parties attended the hearing.
The landlord has applied for compensation, partial refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

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 careless, and occurs after 27 August 2019, section 49B RTA 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) 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 following damage was caused during the tenancy: a. Stains on the upstairs bedroom carpet; b. Stains on the downstairs bedroom carpet; c. Stains on the vanity; d. Hole in bathroom door; and e. Broken latch on dishwasher.
The landlord says that this damage was as a result of the tenant’s careless acts or omissions during the tenancy, that their insurer classified the damage as being more than fair wear and tear and that the tenant should be held liable for the insurance excess the landlord had to pay to get the damage repaired.
The tenant argued the house was built in the 1980’s and that although there had been some further damage during the tenancy many of the claims were for items that were considerably worn and, in some cases, stained at the start of the tenancy.
The tenant produced photographs of the premise at the start of the tenancy that she had sent to the property manager a month after the tenancy commenced. These photographs show the downstairs bedroom carpet had significant staining on it and that it was extremely worn, pulling away from the walls and had mould growing in it that had also left mould stains.
The tenant says she was concerned that the house was not in a reasonably clean and tidy condition when she rented it, so she engaged a professional cleaner to clean the house generally and clean the carpets throughout the house. The cleaner was not able to remove the mould and other stains of the downstairs bedroom carpet. The tenant says she was happy to rent the house as it was, excepted it was an old house that was not pristine and was prepared to have it cleaned at the start of the tenancy.
The tenant has chosen not to make a cross application, when the evidence she has given suggested she could have, as she has taken a pragmatic, fair and reasonable approach to her tenancy of an old house that she has described as needing some repairs and renovation. As such, she readily agreed to pay the insurance excess cost for the hole in the bathroom door as she says it was damaged during a medical emergency event and considers it to be her responsibility to compensate the landlord for that damage. Downstairs bedroom carpet
The entry inspection photographs show there were some significant stains on this bedroom carpet at the start of the tenancy. The photographs the tenant took at the start of the tenancy also show the bedroom carpet had significant stains on it at the start of the tenancy.
The exit inspection photographs show there was an additional red stain in the corner of the carpet that was not there at the start of the tenancy. The tenant accepted this stain occurred during the tenancy. She stated she had tried to get the stain removed but, like the pre-tenancy stains, it did not come out.
The tenant says the damage is in a room her teenage son inhabited and that she had put him in the bedroom with carpet that was well overdue for replacement, that was worn, coming away from the walls, had no underlay, was damp and had mould stains so that if he accidentally dropped something that there would not be an issue with the carpet.
I am satisfied that the damage the tenant’s son did to the carpet in the downstairs bedroom added to significant stains that were already on the carpet when the tenancy started. The photographic evidncec provided by both parties also shows that the carpet is at least 40 years old, is worn, mouldy, coming away from the wall and in places the carpet tacks were sticking out of the floorboards.
This carpet was in need of replacement at the time the tenancy commenced, and it was not replaced by the owners.
The property manager informed me the owners have moved back into the premise themselves and are carrying out some remedial work to the property.
Given the landlord is seeking the $400.00 excess for full replacement of over 40-year-old carpet that the tenant has proven was not in a reasonable condition at the start of the tenancy, I dismiss the landlord’s claim as the carpet was in need of full replacement before the tenancy commenced. Upstairs bedroom carpet
The photographs provided by both parties show the rust mark on the upstairs bedroom carpet came for the tenant’s wooden bed base. She says her bed base had not left a mark like that in her prior tenancies and it was not reasonably foreseeable that the bed base would mark the carpet.
I find that this damage, although caused during the tenancy, was accidental damage rather than intentional or careless damage. As such, I am satisfied the tenant is not liable for the $400.00 insurance excess to replace the 40-year-old worn carpet in that bedroom and dismiss the landlord’s claim for lack of proof the damage was intentional or careless. Bathroom Vanity
The landlord says the pink and orange marks on the vanity were because of careless acts or omissions by the tenant during her tenancy.
The photographic evidence shows these marks were not present at the start of the tenancy and the tenant says they were not there when she was cleaning the vanity during her tenancy.
The tenant says she had a white enamel coated metal container in which she kept her personal products and toothbrush etc in the bathroom during the tenancy. She did so in order to prevent these products marking the very old and porous vanity, that she says was hard to keep clean because the surface of it was worn, porous and easily absorbed things. She says she does not know how the stains may have occurred as she took all reasonably practicable steps to protect the old worn surfaces.
The tenant produced photographs from the start of the tenancy that show the vanity had seen better days and was overdue for replacement. It appears to be the original vanity form the 1980 era.
Given the age and condition of the vanity at the beginning of the tenancy, it is likely the owners would want to replace it before moving into the house themselves. I am satisfied the tenant did not intentionally or careless cause the damage to the vanity and she should not be liable for the $400.00 insurance excess fee for the landlords to replace the 40 plus year old vanity with a new one at the tenant’s expense. This claim is dismissed. Dishwasher latch
The property manager confirmed the tenant called her a month before the tenancy ended to tell her that when she had opened the dishwasher door she had found a screw had come loose and fallen into the bottom of the dishwasher and the latch was broken. The tenant and property manager confirmed the screw was thread bear and unable to be screwed back in and the broken latch meant the dishwasher door could not be closed and the dishwasher became unusable.
The property manager was unable to get the dishwasher fixed as it was 15 to 20 years old and the parts are no longer available. This meant the dishwasher had to be replaced.
The tenant did not cause this damage. The screw and latch failed because of decades of fair wear and tear. I am surprised the landlord has sought to claim the $400.00 insurance excess to get the dishwasher relaced with a new one but did not offer the tenant any sort of rent reduction for the loss of amenity and inconvenience of not being able to use the dishwasher in the last 4 weeks of her tenancy. This is an amenity that she was paying rent to avail herself of.
I dismiss the landlord’s claim for failure to prove the tenant’s liability for the damage to the dishwasher latch. Bathroom door
The tenant has agreed the damage to the bathroom door is more than fair wear and tear, she has accepted liability for the damage and has agreed to pay the $400.00 insurance excess to have the bathroom door repaired.
The amount ordered is proved. Reimbursement of the filing fee
Section 102(4) of the RTA confirms the Tribunal may reimburse the filing fee to an applicant that is wholly or substantially successful in its claims.
The landlord came to the Tribunal seeking claims for issues it could have talked to the tenant about and come to a reasonable agreement on. The tenant had evidence and a sound explanation for the damage claims raised in this hearing. She accepted responsibility for a claim that I may not have awarded anything for if the damage to the bathroom wall was not intentional or careless. The tenant informed me the damage occurred because of a medical emergency. We did not delve into this claim as the tenant was happy to accept liability for it.
The property manager was the dishwasher broke because of its age and because of fair wear and tear but advocated for the owners claim that the damage was intentional or careless.
The landlord could have achieved the same award as I have made today by having a full and frank discussion with the tenant and being realistic about the age and condition of the items, they came to the Tribunal asking the tenant to pay to have replaced. As such, the landlord has not been wholly or substantially successful in its claims and its application for reimbursement of the filing fee is dismissed.

Tenancy Tribunal case 4839870 — Property damage at Unit/Flat 3, 11 Faulkner Road, Northcote Point, Auckland

At a glance

Tenancy Tribunal case 4839870 — Property damage at Unit/Flat 3, 11 Faulkner Road, Northcote Point, Auckland

At a glance

Award balance

Claims & awards

Dismissed claims

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

Dismissed claims

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