What was Tenancy Tribunal case 4840300 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4840300?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4840300?

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

Where can I read the official tribunal order for case 4840300?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10474009-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4840300 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4840300?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4840300?

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

Where can I read the official tribunal order for case 4840300?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10474009-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4840300 — Property damage

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New Zealand Tenancy Tribunal Case 4840300 — Property damage | TenantCheck

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both the Tenants and Landlord’s name and identifying details.
[The landlord] must pay [the tenants] $163.78 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,160.00 ([Bond number suppressed]) immediately to [the tenants]..

Reasons

Both parties attended the hearing.
The landlord has applied for water rates arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenants apply for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. A. LANDLORD CLAIMS

How much is owed for water rates?

The tenancy ended on 13 October 2023. The landlord provided water rates invoices which prove the amount owing at the end of the tenancy. The tenants agreed that they owed the landlord $56.72 in water rates for the last month of their tenancy.

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) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlord says the tenants did not leave the premises reasonably clean and tidy and seek compensation for the $373.75 they spent getting the premise deep cleaned. The landlord provided photographs to support this claim that showed some draw, window ledge and window frames that required wiping or that were discoloured and were not pristine. The tenants proved these photographs were taken on 9 October 2023 and not after they had cleaned on 13 October 2023 or at the exit inspection on 16 October 2023. Therefore, I am not satisfied that these photographs accurately represent the state of cleanliness of the premise on the 13 October 2023, when the tenants handed over vacant possession.
Section 40(1)(e)(iii) of the RTA confirms that on termination of the tenancy, the tenant must “leave the premises in a reasonably clean and reasonably tidy condition”. This provision does not impose an absolute standard of responsibility. The obligation is not to leave the premises in an immaculate standard of cleanliness and tidiness, nor does it mean that it will necessarily be up to the standard that a landlord might consider for a new tenant, for sale, or for the owner to re-occupy 1 : The standard will vary according to the age and condition of the premises and, in particular, the condition that they were in at the start of the 1 Face Property Management Ltd v Mike Bourne Contracting Ltd Christchurch TT 12/00532/CH, 24 August 2012. tenancy 2 :The test is objective and not based on the subjective opinion of either the landlord or the tenant.
In Housing New Zealand Ltd v Holloway Auckland TT 215/93, 8 February 1993 the Tribunal stated: “‘Reasonably tidy’ grounds are not perfect ‘prizewinning’ grounds, but neither [are they] grounds that suggest a property is unoccupied, or constitute a health hazard (vermin) or fire risk. Rather [it is] something in between; grounds maintained to a standard that an average, reasonable bystander would consider ‘reasonably tidy’.”
Equally, the inside of a premise does not have to be left at hotel or motel standard, but at a standard an average, reasonable bystander would consider “reasonably clean and tidy”.
The tenants provided a video of the day they had finished cleaning after they had moved all their belongings out of the premise. The video shows the premise was left in a reasonably clean and tidy state.
The landlord’s claim for compensation for cleaning costs is dismissed for lack of evidence proving its claim and because the tenants have provided evidence which disproves liability for this cost as the premise was at standard that an average, reasonable bystander would consider “reasonably tidy”.

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 2 Westwood v Western [1994] DCR 759. 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 landlord says the following damage was caused during the tenancy: a. The wooden floorboards in the kitchen were marked due to the tenant’s fridge not having a drip tray under it and leaking over time; b. The wooden floorboards in the lounge had several watermarks on them; c. The curtains in the lounge and bedroom are stained with mould and needed stain remover and cleaning; and d. The extractor fan in the kitchen needed replacing as it was beyond repair due to the motor being ceased. Kitchen Floorboards
The tenants say they were not aware of the leak under their fridge or that it did not have a drip tray until they moved the fridge to move out. It was at that time they first became aware of the leak and the damage. They claim that at no time was any water leak evident to them and if it had been they would have investigated the leak and inform the landlord or any damage.
The tenants did not dispute liability for the repair cost of this kitchen floor damage. They disputed the amount sought.
The landlord confirmed to me that the premise was insured and the excess for deliberate damage was $500.00 per claim and other claims attracted a $400.00 excess. The landlord also confirmed that at the date of hearing the landlord has not made an insurance claim for this damage.
Section 49B of the RTA says the tenants are liable for damage caused by deliberate or intentional acts or omissions and the tenants’ liability is capped at the lesser of 4 weeks rent or the insurance excess for careless acts or omissions causing damage to the rental premises during the tenancy. Any other accidental damage is classified as fair wear and tear and the tenants are not liable for fair wear and tear.
The damage is more than fair wear and tear, and the tenants have accepted liability for the damage. I agree that they have some responsibility for the cost of the damage caused by their fridge, as it was carelessness that led to the floor being marked. It was reasonably foreseeable that a fridge without a drip tray may led to damaged wooden floorboards. Therefore, I am satisfied the damage was caused during the tenancy, by the tenants and that they should be held liable for the $400.00 insurance excess for careless damage and award that compensation to the landlord.
It is the landlord’s responsibility to make a claim to offset their loss.
I have considered 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, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan.
The amount ordered is proved. Lounge Floorboards
The landlord says the tenants left a bucket of water and mop on the lounge floor when they were cleaning the floor, after they had moved all their possessions out but had not yet yielded vacant possession to the landlord.
The landlord became aware of the bucket of water on the lounge floor when the landlord took an insurance assessor to look at the damage to the kitchen floor and could not access the house but looked at the floors through the window. The landlord took photographs of the abandoned bucket of water and could see the watermarks on the floor. The landlord took some photographs through the window that give a deceptive view that there is a smoky white mark on the floor that is in fact a reflection of light.
Exit inspection photographs show watermarks across the lounge floor that were not there in the entry inspection photographs nor in the July 2023 property inspection photographs.
The tenants say thy do not know how these marks were made or when and stated that there were three days from when they moved out until the date the final inspection was done on 16 October 2023 and maybe one of the landlord’s contractors made these marks.
The landlord says that the evidence of the tenants leaving a bucket of water on the floor while they went to lunch shows they were careless in protecting the floor from preventable water marks.
I find on the balance of probabilities, it is more likely the tenants caused the water marks when trying to clean the floor before handing the premise back to the landlord and that these water marks were caused by their lack of understanding of how to wash a wooden polyurethane floor. I am satisfied that the water marks were as a result of the tenants careless acts or omissions an that they should be held liable for the insurance excess of $400.00 for this damage in accordance with s49B(3) of the RTA which says the tenants liability is capped to the lesser of the insurance excess or 4 weeks rent.
The damage is more than fair wear and tear, and the tenants have not disproved liability for the damage.
I have considered 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, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan.
The amount ordered is proved. Bedroom curtains
The landlords claim that the tenant had a bed up against the bedroom net curtains and as result the curtain could not have air circulating around it. Consequently, it says the curtain got mouldy and stained and in need of cleaning and stain removal.
The tenants claim the room was adequately aired and the mould stains were fair wear and tear for which they should not be held responsible.
The landlord provided a photograph that showed a double bed in a small room that pushed the curtain up against the wall as it had claimed.
I therefore accept the landlord’s claim the curtain was jammed behind the bed, and consequently became mould stained. As such, I find the landlord has proven its claim and award the landlord compensation of $179.50 for the stain removal and cleaning of the curtains. Kitchen Extractor Fan
The landlords claim that: a. The extractor fan in the kitchen was less than 12 months old, had an expected lifespan of 3 to 5 years; b. The tenants ceased the engine on it due to cooking for more persons than the fan was designed to handle cooking fumes for (4 adults and child instead of the 2 adults and a child the tenancy agreement allowed for); c. The tenants failed to keep the vents free from oil; d. The tenants failed to keep the extractor fan going for long enough after cooking a meal to adequately clear the cooking fumes out of the room; and e. The electrician that came to look at the fan said the motor had ceased due to excess oil in the motor and that it was not covered under warranty.
The landlords say this damage is more than fair wear and tear, and the tenants should be liable for the damage their cooking habits caused.
The tenants say they had their parents staying with them as visitors from July to September 2023 when the tenants’ baby first arrived. Their parents came to help them adjust to having a new baby and to lend a hand. They stated further that they did have the extractor fan on for a lengthy period after their cooking had ceased and were not cooking a lot more food for 4 adults than they were for 2.
The tenants denied responsibility for the ceased motor on the extractor fan and said they used it in accordance with the manufacturer’s instructions. If it was not fit for purpose, then the landlord could have installed a larger rangehood, but they did not.
I do not accept the tenants intentionally or deliberately acted in a way that ceased the fan nor do I accept that cooking for their parents for around 2.5 months caused the extractor fan motor to cease. The tenants say they wiped the outside of the fan where they could reach and could not be expected to pull the fan apart to regularly clean around the motor. I accept the fan ceased due to oil in it but not that the tenants could have done anything more than they did to prevent the oil from their cooking building up around or in the motor. Maybe a larger or different type of extractor fan could have lasted longer with normal cooking for a family of 2, with occasional visitors staying over.
For the reasons outlined above, I find that the motor in the fan ceasing was fair wear and tear, and the tenants are not liable for the replacement cost of the new extractor fan.
The landlord’s claim for compensation for the replacement of the extractor fan is dismissed for lack of evidence to prove the tenants deliberate or careless acts or omissions led to the ceased motor. B. TENANTS CLAIMS Unlawful entry
[The tenants] claim the landlord has entered the premises without consent or notice between 7 to 12 October 2023, after they had moved their belongings out of the premise but before they gave the landlord vacant possession of it.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
The tenants have applied for compensation for unlawful entry of a contractor that they say the landlord either gave keys to or told the contractor about the keys the tenants left outside.
The landlord says they were aware the tenants left the keys under the mat, but when the landlord went to the premise, on 9 October 2023 with the insurance assessor, the keys were not under the mat. Further, the landlord gave evidence that, “had they been”, the property manager “would have used the keys to take the assessor inside without the tenants’ permission”. The property manager conveyed to me in her evidence that because the tenants had moved their property out, even though they were still paying rent and the tenancy had not ended, that meant the property manager could allow the assessor or anyone else into the premise before the end of the tenancy.
The tenants produced photographs that showed blue tape on areas inside the house that a contractor has placed to show where work needed to be done. The contractor did this in the period 7 to 12 October 2023 as the tenants became aware of these tapes when they went to clean on 12 October 2023. They had not been asked permission for anyone to enter the premise and had not been given any notice of a contactor coming into the premise in that period.
I find that the landlord is in breach of its s48 of the RTA obligations to get the tenants consent or give the statutorily required notice to enter the premise and that it has committed an unlawful act intentionally.
The tenants have been held liable for damage done by the contractors as they were not present when the contractors were in the premise and the property manager confirmed she had not been at the premise when the contactors undertook their assessment of the work require post the tenancy ending.
I am satisfied that it is appropriate to award the tenants $600.00 in compensation for this intentional breach of the landlord’s right of entry obligations to them. Breach of quiet enjoyment
[The tenants] claim the landlord has harassed them and breached their privacy when the landlord arranged for a contractor assess a fencing job Friday 29 September 2023 at 7:30pm, so he could fix a fence at the premise on Monday 2 October 2023. They say the contractor never came to assess the job on as arranged on 29 September 2023 and instead came to the premise on Sunday 1 October 2023 to assess and complete he work without any notice.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA. The tenants have not claimed exemplary damages, but general damages for this breach. These damages can be in the form of rent relief or other compensation for the inconvenience, loss of amenity or stress caused by the landlord’s breach.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenants say the owner’s daughter came and asked them on Sunday 1 October 2023 if the contractor could do the job that day as the contractor had to take his wife for a scan on the Monday when he was supposed to undertake the fencing job. The tenants were reluctant to agree as they had a new baby and had made special arrangements to be out of the house on the Monday, so the baby’s sleep was not negatively impacted by the noise associated with a fencing project.
The tenants say they felt pressured as they felt sorry for the contractor and under pressure by the owner’s daughter to agree to the work being done right then and there. So, they agreed to the contractor carrying out the work when they had nowhere else to take their baby and they suffered the stress and inconvenience of the contractor keeping their baby awake and impacting the baby’s sleep patterns for days after. They also suffered themselves from the banging and other noises the contactor made.
I find that although the tenants agreed to the contractor carrying out the work that day, they should not have been put in a position where they felt harassed and forced into agreeing to have a contractor working at their home on their weekend when they wanted that time to spend together quietly as a family enjoying the premise they were paying for.
I am satisfied that it is appropriate to award the tenants $600.00 in compensation for this intentional breach of the landlord’s obligations to afford the tenants quiet enjoyment of the premise and for the stress and inconvenience they and their baby suffered because the landlord had not given them notice of works being undertaken that day. As such, they had no time to make arrangements to take the baby somewhere it could sleep comfortably while the work was undertaken.

Did the landlord fail to lodge the bond within 23 working days?

[The tenants] claim the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The tenants say they paid the bond to the landlord on 29 September 2022 and that it was no lodged with the Bond Centre until 22 March 2023.
The landlord provided proof that it lodged the tenants bond with the Bond Centre on 7 October 2022, well withing the 23 working days after 29 September 2022.
The tenants claim fails as the landlord has disproven the breach occurred. The claim in therefore dismissed. Should the landlord be liable for the full cost of the tenants’ accommodation when they had issues with the SMART Meter that caused a lack of power to the premises for the first 2 weeks of their tenancy?
The tenants say the landlord should be liable for the full cost of the tenants’ alternative accommodation when they had issues with the SMART Meter that caused a lack of power to the premises for the first 2 weeks of their tenancy.
The parties confirmed the landlord had reimbursed the tenants for half of the cost of their alternative accommodation in this period.
The landlord says it was not responsible for the power outage at the premise, it was not liable for any costs incurred by the tenants for the lack of power to the premises for the first two weeks of their tenancy and that it has acted in good faith and thought it was a nice gesture to share the cost of an issue that was the sole responsibility of the electricity network power provider (Vector) and the energy retailer (Genesis).
Vector and Genesis have been rolling out SMART meters to homes since 2020 to give Genesis’s customers access to information about their power usage and to give them freedom to make energy decisions before the power bill arrives. As such the rental premise the tenants moved into had one of these meters installed.
The tenants say they arranged for the power to be put on in plenty of time before their tenancy commenced and were shocked when the power was not on for two weeks after their tenancy started. They claimed there was something wrong with the electricity service to the premise and not the fault of their energy retailer. They say that this was evidenced by the fact it was a person from Vector and not Genesis that fixed the issue with the SMART meter. Further, the landlord should be liable for the total cost of the alternative accommodation they were forced to incur because of the issue with the meter.
The landlord had no control over how Vector’s SMART meter interacted with Genesis’s power provision and cannot be held liable for the costs they incurred while these two providers worked out what the issue was that was causing Genesis not to be able to supply electricity to the premise.
The tenants have received a generous contribution towards the accommodation costs they incurred from the landlord, and I am satisfied that the landlord should not be held liable for any further costs incurred by the tenants. The network power provider and the energy retailer are the only entities that can be held liable for any further costs the tenants incurred while these organisations sorted the power issue out between them.
The tenants claim for reimbursement of the other half of their alternative accommodation costs is therefore dismissed for lack of evidence that the liability for this cost sits with the landlord. Reimbursement of the filing fee
Both parties have substantially succeeded with their claims and so the filing fee each party paid would be reimbursed back to them, thus cancelling each other out. As such, these costs lie where they fall. Both parties claim for reimbursement of the filing fee is therefore dismissed. Name suppression
The landlord and the tenants apply for non-publication of their names and 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.
The landlord and the tenants have substantially succeeded in these proceedings. I do not consider publication is in the public interest or justified because of the landlord’s or the tenants conduct or any other circumstances of the case.
Non-publication is ordered.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both the Tenants and Landlord’s name and identifying details.
[The landlord] must pay [the tenants] $163.78 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,160.00 ([Bond number suppressed]) immediately to [the tenants]..

Reasons

Both parties attended the hearing.
The landlord has applied for water rates arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenants apply for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. A. LANDLORD CLAIMS

How much is owed for water rates?

The tenancy ended on 13 October 2023. The landlord provided water rates invoices which prove the amount owing at the end of the tenancy. The tenants agreed that they owed the landlord $56.72 in water rates for the last month of their tenancy.

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) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlord says the tenants did not leave the premises reasonably clean and tidy and seek compensation for the $373.75 they spent getting the premise deep cleaned. The landlord provided photographs to support this claim that showed some draw, window ledge and window frames that required wiping or that were discoloured and were not pristine. The tenants proved these photographs were taken on 9 October 2023 and not after they had cleaned on 13 October 2023 or at the exit inspection on 16 October 2023. Therefore, I am not satisfied that these photographs accurately represent the state of cleanliness of the premise on the 13 October 2023, when the tenants handed over vacant possession.
Section 40(1)(e)(iii) of the RTA confirms that on termination of the tenancy, the tenant must “leave the premises in a reasonably clean and reasonably tidy condition”. This provision does not impose an absolute standard of responsibility. The obligation is not to leave the premises in an immaculate standard of cleanliness and tidiness, nor does it mean that it will necessarily be up to the standard that a landlord might consider for a new tenant, for sale, or for the owner to re-occupy 1 : The standard will vary according to the age and condition of the premises and, in particular, the condition that they were in at the start of the 1 Face Property Management Ltd v Mike Bourne Contracting Ltd Christchurch TT 12/00532/CH, 24 August 2012. tenancy 2 :The test is objective and not based on the subjective opinion of either the landlord or the tenant.
In Housing New Zealand Ltd v Holloway Auckland TT 215/93, 8 February 1993 the Tribunal stated: “‘Reasonably tidy’ grounds are not perfect ‘prizewinning’ grounds, but neither [are they] grounds that suggest a property is unoccupied, or constitute a health hazard (vermin) or fire risk. Rather [it is] something in between; grounds maintained to a standard that an average, reasonable bystander would consider ‘reasonably tidy’.”
Equally, the inside of a premise does not have to be left at hotel or motel standard, but at a standard an average, reasonable bystander would consider “reasonably clean and tidy”.
The tenants provided a video of the day they had finished cleaning after they had moved all their belongings out of the premise. The video shows the premise was left in a reasonably clean and tidy state.
The landlord’s claim for compensation for cleaning costs is dismissed for lack of evidence proving its claim and because the tenants have provided evidence which disproves liability for this cost as the premise was at standard that an average, reasonable bystander would consider “reasonably tidy”.

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 2 Westwood v Western [1994] DCR 759. 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 landlord says the following damage was caused during the tenancy: a. The wooden floorboards in the kitchen were marked due to the tenant’s fridge not having a drip tray under it and leaking over time; b. The wooden floorboards in the lounge had several watermarks on them; c. The curtains in the lounge and bedroom are stained with mould and needed stain remover and cleaning; and d. The extractor fan in the kitchen needed replacing as it was beyond repair due to the motor being ceased. Kitchen Floorboards
The tenants say they were not aware of the leak under their fridge or that it did not have a drip tray until they moved the fridge to move out. It was at that time they first became aware of the leak and the damage. They claim that at no time was any water leak evident to them and if it had been they would have investigated the leak and inform the landlord or any damage.
The tenants did not dispute liability for the repair cost of this kitchen floor damage. They disputed the amount sought.
The landlord confirmed to me that the premise was insured and the excess for deliberate damage was $500.00 per claim and other claims attracted a $400.00 excess. The landlord also confirmed that at the date of hearing the landlord has not made an insurance claim for this damage.
Section 49B of the RTA says the tenants are liable for damage caused by deliberate or intentional acts or omissions and the tenants’ liability is capped at the lesser of 4 weeks rent or the insurance excess for careless acts or omissions causing damage to the rental premises during the tenancy. Any other accidental damage is classified as fair wear and tear and the tenants are not liable for fair wear and tear.
The damage is more than fair wear and tear, and the tenants have accepted liability for the damage. I agree that they have some responsibility for the cost of the damage caused by their fridge, as it was carelessness that led to the floor being marked. It was reasonably foreseeable that a fridge without a drip tray may led to damaged wooden floorboards. Therefore, I am satisfied the damage was caused during the tenancy, by the tenants and that they should be held liable for the $400.00 insurance excess for careless damage and award that compensation to the landlord.
It is the landlord’s responsibility to make a claim to offset their loss.
I have considered 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, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan.
The amount ordered is proved. Lounge Floorboards
The landlord says the tenants left a bucket of water and mop on the lounge floor when they were cleaning the floor, after they had moved all their possessions out but had not yet yielded vacant possession to the landlord.
The landlord became aware of the bucket of water on the lounge floor when the landlord took an insurance assessor to look at the damage to the kitchen floor and could not access the house but looked at the floors through the window. The landlord took photographs of the abandoned bucket of water and could see the watermarks on the floor. The landlord took some photographs through the window that give a deceptive view that there is a smoky white mark on the floor that is in fact a reflection of light.
Exit inspection photographs show watermarks across the lounge floor that were not there in the entry inspection photographs nor in the July 2023 property inspection photographs.
The tenants say thy do not know how these marks were made or when and stated that there were three days from when they moved out until the date the final inspection was done on 16 October 2023 and maybe one of the landlord’s contractors made these marks.
The landlord says that the evidence of the tenants leaving a bucket of water on the floor while they went to lunch shows they were careless in protecting the floor from preventable water marks.
I find on the balance of probabilities, it is more likely the tenants caused the water marks when trying to clean the floor before handing the premise back to the landlord and that these water marks were caused by their lack of understanding of how to wash a wooden polyurethane floor. I am satisfied that the water marks were as a result of the tenants careless acts or omissions an that they should be held liable for the insurance excess of $400.00 for this damage in accordance with s49B(3) of the RTA which says the tenants liability is capped to the lesser of the insurance excess or 4 weeks rent.
The damage is more than fair wear and tear, and the tenants have not disproved liability for the damage.
I have considered 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, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan.
The amount ordered is proved. Bedroom curtains
The landlords claim that the tenant had a bed up against the bedroom net curtains and as result the curtain could not have air circulating around it. Consequently, it says the curtain got mouldy and stained and in need of cleaning and stain removal.
The tenants claim the room was adequately aired and the mould stains were fair wear and tear for which they should not be held responsible.
The landlord provided a photograph that showed a double bed in a small room that pushed the curtain up against the wall as it had claimed.
I therefore accept the landlord’s claim the curtain was jammed behind the bed, and consequently became mould stained. As such, I find the landlord has proven its claim and award the landlord compensation of $179.50 for the stain removal and cleaning of the curtains. Kitchen Extractor Fan
The landlords claim that: a. The extractor fan in the kitchen was less than 12 months old, had an expected lifespan of 3 to 5 years; b. The tenants ceased the engine on it due to cooking for more persons than the fan was designed to handle cooking fumes for (4 adults and child instead of the 2 adults and a child the tenancy agreement allowed for); c. The tenants failed to keep the vents free from oil; d. The tenants failed to keep the extractor fan going for long enough after cooking a meal to adequately clear the cooking fumes out of the room; and e. The electrician that came to look at the fan said the motor had ceased due to excess oil in the motor and that it was not covered under warranty.
The landlords say this damage is more than fair wear and tear, and the tenants should be liable for the damage their cooking habits caused.
The tenants say they had their parents staying with them as visitors from July to September 2023 when the tenants’ baby first arrived. Their parents came to help them adjust to having a new baby and to lend a hand. They stated further that they did have the extractor fan on for a lengthy period after their cooking had ceased and were not cooking a lot more food for 4 adults than they were for 2.
The tenants denied responsibility for the ceased motor on the extractor fan and said they used it in accordance with the manufacturer’s instructions. If it was not fit for purpose, then the landlord could have installed a larger rangehood, but they did not.
I do not accept the tenants intentionally or deliberately acted in a way that ceased the fan nor do I accept that cooking for their parents for around 2.5 months caused the extractor fan motor to cease. The tenants say they wiped the outside of the fan where they could reach and could not be expected to pull the fan apart to regularly clean around the motor. I accept the fan ceased due to oil in it but not that the tenants could have done anything more than they did to prevent the oil from their cooking building up around or in the motor. Maybe a larger or different type of extractor fan could have lasted longer with normal cooking for a family of 2, with occasional visitors staying over.
For the reasons outlined above, I find that the motor in the fan ceasing was fair wear and tear, and the tenants are not liable for the replacement cost of the new extractor fan.
The landlord’s claim for compensation for the replacement of the extractor fan is dismissed for lack of evidence to prove the tenants deliberate or careless acts or omissions led to the ceased motor. B. TENANTS CLAIMS Unlawful entry
[The tenants] claim the landlord has entered the premises without consent or notice between 7 to 12 October 2023, after they had moved their belongings out of the premise but before they gave the landlord vacant possession of it.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
The tenants have applied for compensation for unlawful entry of a contractor that they say the landlord either gave keys to or told the contractor about the keys the tenants left outside.
The landlord says they were aware the tenants left the keys under the mat, but when the landlord went to the premise, on 9 October 2023 with the insurance assessor, the keys were not under the mat. Further, the landlord gave evidence that, “had they been”, the property manager “would have used the keys to take the assessor inside without the tenants’ permission”. The property manager conveyed to me in her evidence that because the tenants had moved their property out, even though they were still paying rent and the tenancy had not ended, that meant the property manager could allow the assessor or anyone else into the premise before the end of the tenancy.
The tenants produced photographs that showed blue tape on areas inside the house that a contractor has placed to show where work needed to be done. The contractor did this in the period 7 to 12 October 2023 as the tenants became aware of these tapes when they went to clean on 12 October 2023. They had not been asked permission for anyone to enter the premise and had not been given any notice of a contactor coming into the premise in that period.
I find that the landlord is in breach of its s48 of the RTA obligations to get the tenants consent or give the statutorily required notice to enter the premise and that it has committed an unlawful act intentionally.
The tenants have been held liable for damage done by the contractors as they were not present when the contractors were in the premise and the property manager confirmed she had not been at the premise when the contactors undertook their assessment of the work require post the tenancy ending.
I am satisfied that it is appropriate to award the tenants $600.00 in compensation for this intentional breach of the landlord’s right of entry obligations to them. Breach of quiet enjoyment
[The tenants] claim the landlord has harassed them and breached their privacy when the landlord arranged for a contractor assess a fencing job Friday 29 September 2023 at 7:30pm, so he could fix a fence at the premise on Monday 2 October 2023. They say the contractor never came to assess the job on as arranged on 29 September 2023 and instead came to the premise on Sunday 1 October 2023 to assess and complete he work without any notice.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA. The tenants have not claimed exemplary damages, but general damages for this breach. These damages can be in the form of rent relief or other compensation for the inconvenience, loss of amenity or stress caused by the landlord’s breach.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenants say the owner’s daughter came and asked them on Sunday 1 October 2023 if the contractor could do the job that day as the contractor had to take his wife for a scan on the Monday when he was supposed to undertake the fencing job. The tenants were reluctant to agree as they had a new baby and had made special arrangements to be out of the house on the Monday, so the baby’s sleep was not negatively impacted by the noise associated with a fencing project.
The tenants say they felt pressured as they felt sorry for the contractor and under pressure by the owner’s daughter to agree to the work being done right then and there. So, they agreed to the contractor carrying out the work when they had nowhere else to take their baby and they suffered the stress and inconvenience of the contractor keeping their baby awake and impacting the baby’s sleep patterns for days after. They also suffered themselves from the banging and other noises the contactor made.
I find that although the tenants agreed to the contractor carrying out the work that day, they should not have been put in a position where they felt harassed and forced into agreeing to have a contractor working at their home on their weekend when they wanted that time to spend together quietly as a family enjoying the premise they were paying for.
I am satisfied that it is appropriate to award the tenants $600.00 in compensation for this intentional breach of the landlord’s obligations to afford the tenants quiet enjoyment of the premise and for the stress and inconvenience they and their baby suffered because the landlord had not given them notice of works being undertaken that day. As such, they had no time to make arrangements to take the baby somewhere it could sleep comfortably while the work was undertaken.

Did the landlord fail to lodge the bond within 23 working days?

[The tenants] claim the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The tenants say they paid the bond to the landlord on 29 September 2022 and that it was no lodged with the Bond Centre until 22 March 2023.
The landlord provided proof that it lodged the tenants bond with the Bond Centre on 7 October 2022, well withing the 23 working days after 29 September 2022.
The tenants claim fails as the landlord has disproven the breach occurred. The claim in therefore dismissed. Should the landlord be liable for the full cost of the tenants’ accommodation when they had issues with the SMART Meter that caused a lack of power to the premises for the first 2 weeks of their tenancy?
The tenants say the landlord should be liable for the full cost of the tenants’ alternative accommodation when they had issues with the SMART Meter that caused a lack of power to the premises for the first 2 weeks of their tenancy.
The parties confirmed the landlord had reimbursed the tenants for half of the cost of their alternative accommodation in this period.
The landlord says it was not responsible for the power outage at the premise, it was not liable for any costs incurred by the tenants for the lack of power to the premises for the first two weeks of their tenancy and that it has acted in good faith and thought it was a nice gesture to share the cost of an issue that was the sole responsibility of the electricity network power provider (Vector) and the energy retailer (Genesis).
Vector and Genesis have been rolling out SMART meters to homes since 2020 to give Genesis’s customers access to information about their power usage and to give them freedom to make energy decisions before the power bill arrives. As such the rental premise the tenants moved into had one of these meters installed.
The tenants say they arranged for the power to be put on in plenty of time before their tenancy commenced and were shocked when the power was not on for two weeks after their tenancy started. They claimed there was something wrong with the electricity service to the premise and not the fault of their energy retailer. They say that this was evidenced by the fact it was a person from Vector and not Genesis that fixed the issue with the SMART meter. Further, the landlord should be liable for the total cost of the alternative accommodation they were forced to incur because of the issue with the meter.
The landlord had no control over how Vector’s SMART meter interacted with Genesis’s power provision and cannot be held liable for the costs they incurred while these two providers worked out what the issue was that was causing Genesis not to be able to supply electricity to the premise.
The tenants have received a generous contribution towards the accommodation costs they incurred from the landlord, and I am satisfied that the landlord should not be held liable for any further costs incurred by the tenants. The network power provider and the energy retailer are the only entities that can be held liable for any further costs the tenants incurred while these organisations sorted the power issue out between them.
The tenants claim for reimbursement of the other half of their alternative accommodation costs is therefore dismissed for lack of evidence that the liability for this cost sits with the landlord. Reimbursement of the filing fee
Both parties have substantially succeeded with their claims and so the filing fee each party paid would be reimbursed back to them, thus cancelling each other out. As such, these costs lie where they fall. Both parties claim for reimbursement of the filing fee is therefore dismissed. Name suppression
The landlord and the tenants apply for non-publication of their names and 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.
The landlord and the tenants have substantially succeeded in these proceedings. I do not consider publication is in the public interest or justified because of the landlord’s or the tenants conduct or any other circumstances of the case.
Non-publication is ordered.

Tenancy Tribunal case 4840300 — Property damage

Tenancy Tribunal case 4840300 — Property damage

Order

Reasons

How much is owed for water rates?

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

Is the tenant responsible for the damage to the premises?

Did the landlord fail to lodge the bond within 23 working days?

Order

Reasons

How much is owed for water rates?

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

Is the tenant responsible for the damage to the premises?

Did the landlord fail to lodge the bond within 23 working days?