What was the outcome of Tenancy Tribunal case 4854663?

The tribunal order states: An application by the landlord for suppression orders in this case is declined.

How much money was awarded in case 4854663?

Filing Fee: $20.44 awarded to tenant; Overpayment Of Rent: $500.00 awarded to tenant

What type of tenancy dispute was case 4854663?

The dispute type was not classified.

Where can I read the official tribunal order for case 4854663?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11186799-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4854663?

The tribunal order states: An application by the landlord for suppression orders in this case is declined.

How much money was awarded in case 4854663?

Filing Fee: $20.44 awarded to tenant; Overpayment Of Rent: $500.00 awarded to tenant

What type of tenancy dispute was case 4854663?

The dispute type was not classified.

Where can I read the official tribunal order for case 4854663?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11186799-Tenancy_Tribunal_Order.pdf.

4 Queen Street, Petone, Lower Hutt 5012 Tenancy Tribunal Case 4854663 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 4854663 — net $1,420.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Overpayment of rent	$500.00	Overpayment of rent
Bond refund	$900.00	Bond refund
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,420.44
Total payable by Landlord to Tenant	$1,420.44

Both parties attended the hearing, and a Tamil interpreter was present to assist Mr Selvaraj.

The tenant, Mr Selvaraj, has applied for refund of the bond and reimbursement of the filing fee following the end of the tenancy.

The landlord, Mr McIvor, has made a cross application for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee. Preliminary issue-terms of the tenancy agreements

There were two tenancy agreements signed by the parties. Each agreement was called a “Flat/House-sharing agreement and appeared to show that both parties lived at the premises as flatmates. The agreements record that the arrangement is between a head tenant, Mr Selvaraj, and a flatmate, Mr McIvor. However, as determined in my decision dated 9 May 2024 and as acknowledged by Mr McIvor, this is a residential tenancy covered by the Residential Tenancies Act 1986 (RTA).

Mr McIvor owns the property comprising of a house situated on the front of the section and a self-contained bedsit flat on the back of the section. Mr McIvor lives in the front house and rented the flat out to Mr Selvaraj. Access to the flat is via a shared driveway with both Mr McIvor and Mr Selvaraj able to park their cars/other vehicles in the shared backyard.

Mr Selvaraj was a relatively new immigrant to New Zealand and when he agreed to rent the premises he produced the flatmate agreement form as it was the form used in his then current living arrangement. Mr McIvor says he agreed to use the form because the tenant’s English was limited, and he thought that the tenant would better understand the agreement. However, he crossed out the reference to himself as a “flatmate “ and wrote ”landlord instead.

The parties disagree as to the start date of the tenancy, the rent payable and the notice period agreed to terminate the tenancy. Therefore, I consider what terms were agreed. Tenancy start date

The first tenancy agreement records a start date of 27 April 2023. However, the landlord claims that the tenancy started on 11 April 2023, and he has charged rent from that date. He says this is supported by evidence of a $300 payment made by the tenant to the landlord’s account on 11 April 2023. When asked why the tenancy agreement recorded a start date of 27 April 2023, the landlord says this was when the agreement was signed so he thought it should be dated accordingly. The landlord says he handed the keys to Mr Selvaraj on 9 April after the tenant showed him evidence of the online payment to him of $300. He advised the tenant that the tenancy agreement would be signed after the tenant paid the rent in advance and the bond. The tenant made a second payment of $1400 on 27 April which covered a bond of $900 and two weeks’ rent of $500.

The tenant gave evidence that he viewed the premises on a holiday weekend between 7-9 April 2023 and expressed interest in renting. He advised Mr McIvor that he needed to give 2 weeks’ notice at his current tenancy before he could start a new tenancy. He says that Mr McIvor agreed but insisted that Mr Selvaraj pay 2 weeks rent as a deposit to hold the property, otherwise Mr McIvor would show it to others and possibly let it to someone else. Mr Selvaraj says he paid $300 on 11 April to the landlord’s bank account but also paid a further amount in cash. Unfortunately, he was unable to prove the cash payment by providing a written receipt or other evidence.

The tenant made the second payment on 27 April 2023 of $1400 to cover 2 weeks rent in advance of $500 and the bond of $900. On the same day the tenancy agreement was signed.

In support of the tenancy start date being 27 April 2023, the tenant not only relies on the written tenancy agreement but also on text messages from Mr McIvor which he produced in evidence. In text exchanges on 20 April 2023, Mr Selvaraj referred to arranging payment of bond money on 27 April to which Mr McIvor replied; “No worries have already started on curtains for you.” In a text message on 21 April, Mr Selvaraj asked Mr McIvor if he could move some items (a bed and fridge) into the premises the next day. Mr McIvor replied “Ok but power doesn’t go on until your move in date ok” and in a further message stated: “No problems just keys stay with me till you have paid on 27 th .”

I have no difficulty finding that the evidence proves the tenant’s claim that the tenancy started on 27 April 2023. It is clear from the landlord’s text messages that he did not hand the keys to Mr Selvaraj until after the bond money was paid and the tenancy agreement was signed on 27 April 2023. Also, the tenancy agreement clearly states that the tenancy starts on 27 April 2023.

Mr Selvaraj says he advised Mr McIvor that he would be getting married in his homeland and he and his wife would return to continue living at the premises. They agreed to sign a new tenancy agreement with a higher rent payable from the date she arrived. The second agreement was signed on 20 September 2023, but no start date was specified.

I accept the tenant’s evidence that his wife moved into the premises on 21 September 2023 and the second tenancy agreement commences from that date. Amount of rent payable

The first tenancy agreement says rent is $250/week payable weekly. Clause 8 of the agreement makes provision for the parties to record what percentage of costs for food, power, gas, water, and internet are to be paid in addition to rent. However, this clause has been left blank.

The landlord claims that rent agreed was $250/week and a further sum of $50/week was agreed for power and internet. The premises and the main house were not separately metered. The landlord says he told the tenant that they would each need to pay one-half of the actual power and internet bills. He says he charged $50/week on the basis that he would make an adjustment for any overpayment when he received the monthly power bill and if the power bill was more, they would share the cost equally. However, he did not provide any evidence of reconciling the amount received from the tenant for utilities with the utility bills received.

The tenant says that the parties agreed on rent of $250/week inclusive of power and internet in the first tenancy agreement and this is what he paid for the first few weeks. While he also paid an initial deposit of $300, he says this was only part of the two weeks rent in advance requested (of $500) as a deposit and was not a payment for one week’s rent. He says after 2 weeks or so, the landlord requested an additional $50/week on the basis that electricity costs were higher than he anticipated so he needed more. The tenant paid the extra sum. The tenant says he never received any refunds from the landlord for overpayments of utilities but did pay other extra cash amounts when demanded by the landlord.

The second tenancy agreement says that rent is $350. Again, clause 8 setting out the percentage of utilities payable is left blank. However, both parties agree that the rent in the second agreement was inclusive of utilities.

Section 39(3) RTA provides the tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities. The difficulty for Mr McIvor is that there is no meter on the tenanted premises and, therefore, no means to calculate the power use that is exclusively attributable to the tenant’s occupation of the premises. Presumably, that is why he proposed a rent figure inclusive of power and internet.

In Geraghty v Raui [2019] NZDC 3813, the District Court held that in considering whether to require the tenant to pay for outgoings when there is no means for calculating the tenant’s actual consumption the Tenancy Tribunal must have regard to section 85 RTA which states: “The Tribunal shall determine each dispute according to the general principles of law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give strict effect to legal rights or obligations or legal forms or technicalities.”

So, where rent is not inclusive of utilities, the Tribunal could on the application of a party consider what would be a reasonable charge for power and internet use during the tenancy.

After carefully considering the evidence, including the wording of the first and second tenancy agreements, I am satisfied that rent was agreed of $250/week in the first agreement and $350/week in the second agreement. There is insufficient evidence to prove any agreement to charge an additional amount for utilities or to an agreed percentage of utilities such as one-half. Therefore, I accept that the rent charged was inclusive of utilities.

However, when asked to pay an extra $50/week for utilities during the period of the first tenancy agreement, the tenant paid the increased amount. Arguably, by making the additional payments, he agreed to them as an amendment to the contract. It is also possible that he agreed to pay this sum towards his share of the bills on the basis that the landlord would reconcile the bills and account for any under or overpayments. The tenant claims that the landlord demanded extra cash payments from him from time to time to cover the power bill. If that is the case, the tenant would be entitled to see the utility bills paid during the tenancy to determine whether he ended up paying more than his fair share. While the tenant stated during the hearing that the landlord must reimburse this money, it was not stated as a claim in his application to the Tribunal. Therefore, I cannot consider it. If the tenant wished to pursue the matter, he would have to file a new application with the Tribunal.

In summary, I accept that the tenant paid $250 for rent under the first agreement but later paid an additional $50 for utilities making a total of $300 paid each week. The landlord’s bank statements show that the tenant first made payment of an extra $300 on 10 May 2023, although this was followed by his payment of $250 on 11 May 2023, which is the start of the week 3 rent period. I consider the extra payments should be treated as applying from 18 May 2023, because the tenant made regular payments of $300 from that date. As stated above, I cannot determine on what terms the extra payment was made by the tenant during the period of the first tenancy agreement and whether he is entitled to recover some or all the additional payments because he has not made a claim for reimbursement.

In relation to the second tenancy agreement, there is no dispute and I accept that the rent payable was $350 inclusive of utilities. Notice period

Mr McIvor argued that because this was a residential tenancy subject to the RTA, where any provisions of the agreement signed by him and the tenant conflicted with the RTA, the RTA must apply. For example, the agreement recorded that either party could give 14 days’ notice in writing to terminate the agreement. However, when the tenant gave 14 days’ notice, the landlord insisted that section 51 RTA applied, and the tenant was required to give 28 days’ notice.

Mr McIvor’s submission is not quite correct. Section 11(1) RTA provides that the RTA generally applies and any tenancy agreement that is inconsistent with any of the provisions of the RTA or that purports to exclude, modify or restrict the operation of any provision of the Act will be of no effect unless it is permitted by the Act, or the Tribunal is satisfied it should be permitted. However, section 11(2) RTA provides that the rule in subsection (1): “........shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. and section 11(3) provides: Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.

Mr McIvor signed an agreement in which he waived his right to 28 days’ notice of termination and agreed that the tenant could give him 14 days’ notice to end the tenancy. The effect of s11 is that the waiver stands. The tenant is entitled to rely on the agreement and give 14 days’ notice. However, the effect of s11 does not mean that the landlord could give 14 days’ notice to end the tenancy because any purported waiver by a tenant of their rights under the RTA is of no effect.

The policy reason for treating landlord and tenant waivers differently is undoubtedly because a landlord is expected to know their rights and obligations under the RTA. A landlord is in the business of letting property and is in the stronger position of power when contracting to rent premises. Mr McIvor argued that he should not be penalised for using an agreement which the tenant suggested and which he says he signed even though he didn’t want to do so. However, I am not persuaded by this argument. The landlord should know his rights and obligations under the RTA. Furthermore, he ought to have known that the agreement was inappropriate for the tenancy. In fact, the agreement does not meet the requirements of the RTA as it does not contain all the information the landlord is required to provide. See section 13A RTA. The legislature and this Tribunal expect landlords to comply with the RTA and where a tenant suggests a form of agreement that is not suitable, the responsibility falls firmly on the landlord to use an appropriate form.

How much is owed for rent?

The landlord claims that the tenant owes him rent. My findings concerning the tenancy start date, the rent agreed, and the notice period to terminate the tenancy are all relevant when determining any rent owed. I am satisfied that on 2 April 2024 the tenant gave a 14 day notice to terminate the tenancy with effect on 15 April 2024. He also advised the landlord that he would be ready to return the keys at 6pm that day. However, 14 days expires on 16 April 2024. Therefore, rent would be payable to that date.

An issue brought to my attention during the hearing affects the rent payable. The tenant says the landlord changed the locks to the premises on 15 April 2024. When the tenant returned to the premises that day, he was locked out. Some of his belongings were still inside and he was yet to finish cleaning.

The landlord argued that he had not seen the tenant for 3 days and it looked like he had abandoned the premises. Therefore, he believed he was entitled to change the locks. The landlord first alleged in the hearing that he changed the locks on 16 April, the day after the termination date of 15 April stipulated by the tenant. However, the tenant produced a text message from the landlord sent at

49pm on 15 July 2024 which reads: “....Because you have moved everything out I take it you have abandoned your tenancy agreement contract. I have changed the lock and I am informing you that effective as of today’s date you are trespassed from the premises. Consider this written notification of that. Your TV is safely locked inside and you will need to arrange a suitable time with me to collect it.

The landlord’s action in changing the locks before the tenancy ended was unlawful. Even, had the tenants vacated the premises, rent was not in arrears. Therefore, it was not an abandonment. Had it been an abandonment, the landlord was still not entitled to change the locks and would have been required to apply to the Tribunal for an order terminating the tenancy for abandonment. Changing the locks before any of those events occurred was unjustified and unlawful. Because the landlord changed the locks unlawfully on 15 April 2024, I consider that he is only entitled to rent up to 14 April 2024.

The landlord prepared a rental summary which is incorrect because rent is charged prior to the tenancy start date and rent is not charged at the correct amounts pursuant to the first and second tenancy agreements. The landlord’s bank statements produced in evidence also showed other errors in the rent summary. A payment of $300 on 4 October 2023 was recorded as $350 on the rent summary and a payment of $350 made on 30 January 2024 was not accounted for in the rent summary at all.

After carefully reviewing the bank statements produced by the landlord and the tenant, I am satisfied that rent was due and paid as follows: Rent period fromRent period toRent due/weekTotal rent due 27/4/2317/5/23 (3 weeks)$250.00$750.00 18/5/2320/9/23 (18 weeks)$300.00$5,400.00 21/9/2314/4/24 (29 weeks 4 days) $350.00$10,350.00 Total rent due$16,500.00 Total rent paid$17,000.00 Rent credit $500.00

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) RTA.

The landlord claims that the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish. He hired cleaners to clean the premises at a cost of $728. He seeks reimbursement from the tenant.

However, the tenant gave evidence that he was returning to the premises on 15 April 2024 with friends to clear the last of his belongings and finish cleaning. Because the landlord changed the locks unlawfully before the tenancy ended, he was unable to complete those tasks.

The landlord is not entitled to recover cleaning costs when he unlawfully locked the tenant out of the premises before the tenancy ended and prevented the tenant from completing the cleaning work required. For that reason, the claim must be dismissed.

Even if the landlord was entitled to make a claim for cleaning, there was no evidence presented to establish the condition of the premises at the start of the tenancy and whether it was reasonably clean and tidy at the start. For example, the landlord did not complete a pre-tenancy inspection report nor provide photos taken immediately before the tenancy started on 27 April 2023.

The tenant claims that the premises were not reasonably clean and tidy at the start with mould and marks on the walls. He said that the landlord painted over the surfaces, but the dirt remained underneath.

A video taken of the premises by the tenant towards the end of the tenancy also raises concerns about the premises. The flat is essentially an open plan room for the bedroom, living area, and kitchen. Off the kitchen is the bathroom with a curtain between the two areas and no closing door. There is no extractor fan in the kitchen and the video shows how cooking steam permeates the open plan bedroom, living and kitchen area. There is a hot water cupboard and a separate small toilet room separated by a door from the open plan area. Entry to the premises is through ranch slider doors off an adjoining deck. The absence of an extractor fan in the kitchen would contribute to condensation and mould forming.

I expressed serious concerns during the hearing as to whether the premises are lawful residential premises in terms of Hutt City Council and building regulations. The Tribunal has the power to determine whether premises are unlawful residential premises on the application of a party or otherwise on the evidence before the Tribunal. See section 78A RTA. However, the tenant did not raise this as a claim in his application and there was insufficient evidence before the Tribunal to determine the matter. Mr McIvor advised that his father purchased the property in 1970 and it has always been used as a self-contained flat which has been tenanted.

I also expressed concern at the hearing about whether the premises comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 which includes a ventilation standard requiring extractor fans in kitchens and bathrooms. As I said at the hearing, I urge the landlord to check these matters before re-letting the premises.

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 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. The landlord confirmed at the hearing that the premises are not insured against damage.

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 claims that the tenant is responsible for damage to a drain in the backyard which requires replacement parts and repairs; and damage to an exterior trellis which requires replacement. I consider each claim in turn. Drain

The landlord claims that when parking his vehicle in the backyard, Mr Selvaraj ran over an exterior drain, causing damage to the plastic sump bucket. He says the tenant continued doing this even after the landlord warned him to be careful. The landlord acknowledged in a text message to the tenant in April 2024 that he too sometimes ran over the drain. Therefore, he only seeks one-half the repair costs from the tenant of $1,018.78 plus the cost of providing the repair quote of $172.50.

The tenant says that he heeded the landlord’s warning but acknowledged that the turning area for parking is tight and it can be difficult to avoid the drain. Even so, he does not believe that he ever drove over the drain in a manner to cause further damage. He also noted that the landlord drove larger vehicles such as a Ute, a truck, and he also parked a boat and trailer in the backyard.

The landlord was unable to provide a photo of the drain showing it’s condition at the start of the tenancy. However, photo evidence provided by both parties of the drain during and towards the end of the tenancy show that the drain is placed halfway over the concreted courtyard area and halfway over a gravel pathway. There is a height difference between the two areas because there is no concrete around the drain on the gravel path side. The landlord acknowledged at the hearing that the difference in the levels would be a contributing factor as to why damage would occur when a car accidentally drives over the drain.

After carefully reviewing all the available evidence, I find that there is insufficient evidence to establish the condition of the drain at the start of the tenancy. Therefore I cannot discount the real possibility that it may have had some damage or wear and tear at the start of the tenancy which deteriorated during the tenancy. I am also satisfied that the tenant did not intentionally or carelessly drive over the drain, but it may have happened accidentally. Similarly, the landlord said that he has driven over the drain sometimes. There is evidence that the absence of level concrete around the entire drain will contribute to damage if a car drives over the drain accidentally.

In summary, I am not satisfied that the damage to the drain was caused by the tenant carelessly or intentionally and it is more likely that the drain has deteriorated through wear and tear over time and because it is not adequately concreted into the ground. For those reasons, the claim is dismissed. Trellis

The landlord claims that a privacy screen/trellis was damaged by the tenant erecting a washing line between the trellis and the flat wall across the deck area. The landlord says he told the tenant to only place light items on the line. However, he claims the tenant placed heavy items of washing on the line which pulled on the screen causing the end post to come away from the trellis slats. The landlord says the trellis was erected in 2022 but had no photo showing the condition of the trellis when this tenancy started. The landlord claims he needs to replace the trellis and seeks costs of $629 to replace, install and paint a new trellis.

The tenant claims that there was already a washing line there which he removed and replaced with the landlord’s permission. He used it throughout the tenancy and the landlord never told him not to use it or to only place light items on the line. He also says that the trellis was likely already worn, and he suggested that the nails used to attach the post to the trellis were too big and caused the wood to split.

I find that there is insufficient evidence to establish the condition of the trellis at the start of the tenancy. Therefore, I cannot discount the possibility that it was damaged from wear and tear when the tenancy started and got worse over time. Also, I am satisfied that the tenant was given permission to replace an existing washing line and was entitled to expect that it was suitable for hanging washing. Therefore I am not persuaded that any damage was caused intentionally or carelessly by the tenant. For that reason the claim is not proved and must be dismissed. Summary

The landlord’s claims against the bond have failed. Therefore, he must refund the bond of $900 in full to the tenant. I repeat my concerns expressed at the hearing that the landlord did not lodge the bond with the Bond Centre. He also ignored my previous Tribunal order on 9 May 2024, instructing him to lodge the bond. In the circumstances, I trust that he will pay the amounts owed under this order immediately.

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. See section 95A RTA. The landlord requested that his name and identifying details be suppressed. However, he has not succeeded with his claims. Therefore, his request for suppression is declined.

Because the tenant has wholly succeeded with his claim I must reimburse the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4854663 — net $1,420.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Overpayment of rent	$500.00	Overpayment of rent
Bond refund	$900.00	Bond refund
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,420.44
Total payable by Landlord to Tenant	$1,420.44