What was the outcome of Tenancy Tribunal case 4839930?

The tribunal order states: Theresa Maudee Nepia must pay Nilantha Darshana Hitthatiya Gamage

How much money was awarded in case 4839930?

Cleaning: $25.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $550.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Remove Rubbish: $25.00 awarded to landlord; Rent In Lieu – Three Weeks: $1,740.00 awarded to landlord; Replace Glass Recycle And Food Scrap…: $41.50 awarded to landlord

What type of tenancy dispute was case 4839930?

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

Where can I read the official tribunal order for case 4839930?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10914243-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4839930?

The tribunal order states: Theresa Maudee Nepia must pay Nilantha Darshana Hitthatiya Gamage

How much money was awarded in case 4839930?

Cleaning: $25.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $550.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Remove Rubbish: $25.00 awarded to landlord; Rent In Lieu – Three Weeks: $1,740.00 awarded to landlord; Replace Glass Recycle And Food Scrap…: $41.50 awarded to landlord

What type of tenancy dispute was case 4839930?

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

Where can I read the official tribunal order for case 4839930?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10914243-Tribunal_Order.pdf.

37A Pohutukawa Drive, Pukete, Hamilton 3200 Tenancy Tribunal Case 4839930 — Property damage

Claims and awards in Tenancy Tribunal application 4839930 — net $2,901.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent in lieu – three weeks	$1,740.00	Rent in lieu – three weeks
Replace damaged carpet excess	$550.00	Replace damaged carpet excess
Repairs walls and ceiling	$500.00	Repairs walls and ceiling
Clean oven, toilet, bathroom	$25.00	Clean oven, toilet, bathroom
Remove rubbish	$25.00	Remove rubbish
Replace glass recycle and food scrap bin	$41.50	Replace glass recycle and food scrap bin
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,901.94
Total payable by Tenant to Landlord	$2,901.94

Order

Theresa Maudee Nepia must pay Nilantha Darshana Hitthatiya Gamage $2,901.94, immediately, calculated as shown in table below.
Nilantha Darshana Hitthatiya Gamage must take any of the tenant’s personal documents that have been left at the premises to the nearest Police station and obtain a receipt for them.
The landlord may dispose of the other goods left at the premises by the tenant as the landlord sees fit.

Reasons

The landlord appeared. There was no appearance by the tenant.
The landlord’s application filed on 15 March 2024, concerned rent arrears and a claim that the tenant had impeded a property inspection. The tenancy was fixed term, commencing on 22 August 2022 expiring 22 August 2024. On 02 August 2024, the Tribunal was advised by the landlord (the tenant did not appear), that the tenancy had ended, and that the tenant had agreed to release the bond to cover rent owing to 05 May 2024. The landlord advised that the claim for rent arrears was being amended, and they now sought rent from the date the tenant vacated to the commencement of a new tenancy on 05 June 2024. The landlord also raised claims that the tenant was responsible for failing to leave the property reasonably clean and tidy, damage to the walls, doors, and carpet, changed the locks without consent, and account for certain chattels.
The Tribunal was not satisfied that the claims had been clearly made out in the application. The hearing was adjourned for the tenant to be properly notified of the claims, and for the landlord to provide their evidence to the tenant, and Tribunal.
The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”). Rent
The landlord has produced a handwritten letter from the tenant dated 01 May 2024. The letter records that the tenant and landlord agree to terminate the tenancy on 05 May 2024, due to the inability to afford the rent. The landlord states while they accepted the tenant’s surrender of the tenancy, they made it clear that the tenant would remain liable for rent until the end of the fixed term or until they entered a new tenancy agreement.
After completing some minor repairs which included repainting walls and replacing the carpet, the property was relet on 05 June 2024. The landlord is claiming compensation for lost rent for the period from 05 May 2024 to 05 June 2024.
A party who breaches the terms of the agreement is liable for any loss naturally arising from the breach that is contemplated by the parties. Under section 49 of the Act, a party suffering a breach must take all reasonable steps to mitigate their loss.
A tenant who abandons a fixed term tenancy is liable for rent until the end of the term, or the landlord entering a new agreement. There is no obligation under section 49 for the landlord to take any steps to mitigate their loss. However, in this case the tenant has not abandoned the property. While the tenant is liable for rent until the end of the fixed term, or until the landlord entered into a new agreement, the landlord had a duty to take reasonable steps to mitigate their loss. The issue is whether the landlord has taken reasonable steps and whether the amount claimed is reasonable.
The property suffered some minor damage which the landlord remedied themselves. The carpet had burns and stains and was replaced. The damage was not extensive. The Tribunal’s assessment is that allowing for three weeks, as opposed to four, to complete this work, advertise, and re let the property for rent is reasonable. The amount claimed is reduced by one week, and the landlord is awarded compensation of three weeks rent.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) of the Act.
The landlord claims that the tenant failed to leave the inside of the property in a reasonably clean and tidy condition. There are no photographs showing the property at the commencement of the tenancy. The pre tenancy inspection checklist does not record the properties state of cleanliness. However, the landlord has produced a text message from the tenant at the end of the tenancy admitting that they had failed to clean some areas and vacuum the floor before vacating. The landlord is claiming $100.00 for cleaning of the bathroom, toilet, oven, and kitchen cabinetry, which they completed themselves. No claim is made for the rest of the property as it was repainted, and the carpet replaced.
An objective assessment is required to determine if the tenant met their obligations. The photographs produced showing the property at the end of the tenancy are of poor quality and limited in number. Based on the evidence available, the only area the Tribunal can be satisfied was not left in a reasonable clean condition was the bathroom. The amount claimed is reduced, and the landlord is awarded $25.00.
The pre tenancy inspection report shows that Council waste bins were provided. At the end of the tenancy, the glass recycling bin and food scrap bin were missing. The tenant has failed to account for these bins, which are considered chattels. The cost of replacing the bins is $ 41.50.
The landlord has produced photographs showing household items left by the tenant. The landlord has applied for an order for the disposal of these items.
The landlord agreed on a period for the tenant was to collect the goods, but the tenant failed to collect the goods within that time.
It is not practicable for the landlord to the return the goods to the tenant. The value of the goods is below the cost of storing, transporting, and selling them. They can be described as rubbish. The landlord may dispose of the goods. See sections 62(3)(b), 62B(2) and (3) of the Act. The Tribunal awards the landlord disposal costs of $25.00.

Is the tenant responsible for damage to the premises?

The landlord claims the tenant is responsible for damage to walls throughout the property, a section of ceiling, and the carpet in two rooms.
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).
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. Walls
The pre tenancy inspection report does not record any damage to the walls, doors, or ceiling. The landlord has produced photographs showing damage to the walls caused by screws, picture hooks, adhesive hooks, which when removed caused damage. There are also small holes, scuffs, nicks, and dents. There is minor paint damage to the top of doors where the landlord claims the tenant used a coat hanging device. In the lounge/ dining room there is blue paint on the white ceiling. While the damage is minor individually, it is widespread throughout the property. I am satisfied that this damage occurred during the tenancy and is more than fair wear and tear. The tenant has not disproved liability. Carpet
The landlord has produced photographs showing stains and cigarette burns on the carpet in two rooms. This damage is not recorded in the pre tenancy checklist. I am satisfied the damage occurred during the tenancy and is more than fair wear and tear. The tenant has not disproved liability.
The landlord replaced the carpet in each room and is claiming one insurance excess of $550.00. The landlord repaired damage and repainted the ceiling and walls themselves and is claiming only the material costs of $500.00.
The carpet was five years old at the commencement of the tenancy, and according to the pre tenancy checklist, was in a good condition. The landlord states that the interior of the property had been painted around 2019/2020. In my view, the amounts claimed do not result in any betterment to the landlord. The amounts claimed are awarded. Changing the locks and failing to allow an inspection.
Section 46 of the Act states that neither the landlord nor tenant may remove, add, or alter the locks without the consent of the other. Under section 48 of the Act a tenant must allow the landlord to conduct an inspection, with notice, or under any of the other circumstances set out in section 48(1) or (2). Breaching either section without a reasonable excuse constitutes an unlawful act, for which exemplary damages may be awarded. Whether exemplary damages are warranted will depend on the intent of the party committing the act, the effect of the unlawful act, interests of the party against whom the breach is committed, and the public interest.
On 16 January 2024, the landlord sent a notice to the tenant advising that they intended conducting a property inspection on Friday 19 January 2024. The notice was sent by email (an address for service) and specified the time for the inspection as 9.45am.
When the landlord arrived at 9.45am, they discovered the front gate locked with two padlocks, one key and the other with a combination. The landlord had not provided these locks, and the tenant had neither sought consent nor supplied the landlord with a key or the combination. The landlord states that they called and texted the tenant several times. Noticing that one of the windows was open, suggesting that someone might be home, they called out but there was no response. Unable to gain entry and unwilling to scale the waist high fence, the landlord left.
Later that day, around 5pm, the landlord received a text from the tenant apologising, suggesting that they might have been home but were either unwell or too upset to see anyone. The parties arranged to meet on 01 May 2024 to discuss rent arrears, at the tenant request, outside the house.
Although I am satisfied that the tenant has breached both section 46 and 48(2), I am not satisfied that an award of exemplary damages is warranted. The letter produced concerning the surrender of the tenancy and the comments made about being upset and unable to accommodate the inspection suggests that the tenant was distressed or embarrassed by their situation. Aside from the inconvenience caused to the landlord, there is no evidence of any actual loss suffered. Costs
Because Nilantha Darshana Hitthatiya Gamage has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression.
Although entitled, the landlord does not seek name suppression. (Section 94A of the Act)

Claims and awards in Tenancy Tribunal application 4839930 — net $2,901.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent in lieu – three weeks	$1,740.00	Rent in lieu – three weeks
Replace damaged carpet excess	$550.00	Replace damaged carpet excess
Repairs walls and ceiling	$500.00	Repairs walls and ceiling
Clean oven, toilet, bathroom	$25.00	Clean oven, toilet, bathroom
Remove rubbish	$25.00	Remove rubbish
Replace glass recycle and food scrap bin	$41.50	Replace glass recycle and food scrap bin
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,901.94
Total payable by Tenant to Landlord	$2,901.94

Order

Theresa Maudee Nepia must pay Nilantha Darshana Hitthatiya Gamage $2,901.94, immediately, calculated as shown in table below.
Nilantha Darshana Hitthatiya Gamage must take any of the tenant’s personal documents that have been left at the premises to the nearest Police station and obtain a receipt for them.
The landlord may dispose of the other goods left at the premises by the tenant as the landlord sees fit.

Reasons

The landlord appeared. There was no appearance by the tenant.
The landlord’s application filed on 15 March 2024, concerned rent arrears and a claim that the tenant had impeded a property inspection. The tenancy was fixed term, commencing on 22 August 2022 expiring 22 August 2024. On 02 August 2024, the Tribunal was advised by the landlord (the tenant did not appear), that the tenancy had ended, and that the tenant had agreed to release the bond to cover rent owing to 05 May 2024. The landlord advised that the claim for rent arrears was being amended, and they now sought rent from the date the tenant vacated to the commencement of a new tenancy on 05 June 2024. The landlord also raised claims that the tenant was responsible for failing to leave the property reasonably clean and tidy, damage to the walls, doors, and carpet, changed the locks without consent, and account for certain chattels.
The Tribunal was not satisfied that the claims had been clearly made out in the application. The hearing was adjourned for the tenant to be properly notified of the claims, and for the landlord to provide their evidence to the tenant, and Tribunal.
The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”). Rent
The landlord has produced a handwritten letter from the tenant dated 01 May 2024. The letter records that the tenant and landlord agree to terminate the tenancy on 05 May 2024, due to the inability to afford the rent. The landlord states while they accepted the tenant’s surrender of the tenancy, they made it clear that the tenant would remain liable for rent until the end of the fixed term or until they entered a new tenancy agreement.
After completing some minor repairs which included repainting walls and replacing the carpet, the property was relet on 05 June 2024. The landlord is claiming compensation for lost rent for the period from 05 May 2024 to 05 June 2024.
A party who breaches the terms of the agreement is liable for any loss naturally arising from the breach that is contemplated by the parties. Under section 49 of the Act, a party suffering a breach must take all reasonable steps to mitigate their loss.
A tenant who abandons a fixed term tenancy is liable for rent until the end of the term, or the landlord entering a new agreement. There is no obligation under section 49 for the landlord to take any steps to mitigate their loss. However, in this case the tenant has not abandoned the property. While the tenant is liable for rent until the end of the fixed term, or until the landlord entered into a new agreement, the landlord had a duty to take reasonable steps to mitigate their loss. The issue is whether the landlord has taken reasonable steps and whether the amount claimed is reasonable.
The property suffered some minor damage which the landlord remedied themselves. The carpet had burns and stains and was replaced. The damage was not extensive. The Tribunal’s assessment is that allowing for three weeks, as opposed to four, to complete this work, advertise, and re let the property for rent is reasonable. The amount claimed is reduced by one week, and the landlord is awarded compensation of three weeks rent.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) of the Act.
The landlord claims that the tenant failed to leave the inside of the property in a reasonably clean and tidy condition. There are no photographs showing the property at the commencement of the tenancy. The pre tenancy inspection checklist does not record the properties state of cleanliness. However, the landlord has produced a text message from the tenant at the end of the tenancy admitting that they had failed to clean some areas and vacuum the floor before vacating. The landlord is claiming $100.00 for cleaning of the bathroom, toilet, oven, and kitchen cabinetry, which they completed themselves. No claim is made for the rest of the property as it was repainted, and the carpet replaced.
An objective assessment is required to determine if the tenant met their obligations. The photographs produced showing the property at the end of the tenancy are of poor quality and limited in number. Based on the evidence available, the only area the Tribunal can be satisfied was not left in a reasonable clean condition was the bathroom. The amount claimed is reduced, and the landlord is awarded $25.00.
The pre tenancy inspection report shows that Council waste bins were provided. At the end of the tenancy, the glass recycling bin and food scrap bin were missing. The tenant has failed to account for these bins, which are considered chattels. The cost of replacing the bins is $ 41.50.
The landlord has produced photographs showing household items left by the tenant. The landlord has applied for an order for the disposal of these items.
The landlord agreed on a period for the tenant was to collect the goods, but the tenant failed to collect the goods within that time.
It is not practicable for the landlord to the return the goods to the tenant. The value of the goods is below the cost of storing, transporting, and selling them. They can be described as rubbish. The landlord may dispose of the goods. See sections 62(3)(b), 62B(2) and (3) of the Act. The Tribunal awards the landlord disposal costs of $25.00.

Is the tenant responsible for damage to the premises?

The landlord claims the tenant is responsible for damage to walls throughout the property, a section of ceiling, and the carpet in two rooms.
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).
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. Walls
The pre tenancy inspection report does not record any damage to the walls, doors, or ceiling. The landlord has produced photographs showing damage to the walls caused by screws, picture hooks, adhesive hooks, which when removed caused damage. There are also small holes, scuffs, nicks, and dents. There is minor paint damage to the top of doors where the landlord claims the tenant used a coat hanging device. In the lounge/ dining room there is blue paint on the white ceiling. While the damage is minor individually, it is widespread throughout the property. I am satisfied that this damage occurred during the tenancy and is more than fair wear and tear. The tenant has not disproved liability. Carpet
The landlord has produced photographs showing stains and cigarette burns on the carpet in two rooms. This damage is not recorded in the pre tenancy checklist. I am satisfied the damage occurred during the tenancy and is more than fair wear and tear. The tenant has not disproved liability.
The landlord replaced the carpet in each room and is claiming one insurance excess of $550.00. The landlord repaired damage and repainted the ceiling and walls themselves and is claiming only the material costs of $500.00.
The carpet was five years old at the commencement of the tenancy, and according to the pre tenancy checklist, was in a good condition. The landlord states that the interior of the property had been painted around 2019/2020. In my view, the amounts claimed do not result in any betterment to the landlord. The amounts claimed are awarded. Changing the locks and failing to allow an inspection.
Section 46 of the Act states that neither the landlord nor tenant may remove, add, or alter the locks without the consent of the other. Under section 48 of the Act a tenant must allow the landlord to conduct an inspection, with notice, or under any of the other circumstances set out in section 48(1) or (2). Breaching either section without a reasonable excuse constitutes an unlawful act, for which exemplary damages may be awarded. Whether exemplary damages are warranted will depend on the intent of the party committing the act, the effect of the unlawful act, interests of the party against whom the breach is committed, and the public interest.
On 16 January 2024, the landlord sent a notice to the tenant advising that they intended conducting a property inspection on Friday 19 January 2024. The notice was sent by email (an address for service) and specified the time for the inspection as 9.45am.
When the landlord arrived at 9.45am, they discovered the front gate locked with two padlocks, one key and the other with a combination. The landlord had not provided these locks, and the tenant had neither sought consent nor supplied the landlord with a key or the combination. The landlord states that they called and texted the tenant several times. Noticing that one of the windows was open, suggesting that someone might be home, they called out but there was no response. Unable to gain entry and unwilling to scale the waist high fence, the landlord left.
Later that day, around 5pm, the landlord received a text from the tenant apologising, suggesting that they might have been home but were either unwell or too upset to see anyone. The parties arranged to meet on 01 May 2024 to discuss rent arrears, at the tenant request, outside the house.
Although I am satisfied that the tenant has breached both section 46 and 48(2), I am not satisfied that an award of exemplary damages is warranted. The letter produced concerning the surrender of the tenancy and the comments made about being upset and unable to accommodate the inspection suggests that the tenant was distressed or embarrassed by their situation. Aside from the inconvenience caused to the landlord, there is no evidence of any actual loss suffered. Costs
Because Nilantha Darshana Hitthatiya Gamage has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression.
Although entitled, the landlord does not seek name suppression. (Section 94A of the Act)

Tenancy Tribunal case 4839930 — Property damage at 37A Pohutukawa Drive, Pukete, Hamilton 3200

At a glance

Tenancy Tribunal case 4839930 — Property damage at 37A Pohutukawa Drive, Pukete, Hamilton 3200

At a glance

Award balance

Claims & awards

Order

Reasons

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions