What was the outcome of Tenancy Tribunal case 4857064?

The tribunal order states: Jake Finch must pay Olivier Pellenard and Danya Freedman Pellenard

How much money was awarded in case 4857064?

Rent Arrears: $5,946.00 awarded to landlord

What type of tenancy dispute was case 4857064?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4857064?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10283239-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4857064?

The tribunal order states: Jake Finch must pay Olivier Pellenard and Danya Freedman Pellenard

How much money was awarded in case 4857064?

Rent Arrears: $5,946.00 awarded to landlord

What type of tenancy dispute was case 4857064?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4857064?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10283239-Tenancy_Tribunal_Order.pdf.

88 Cecil Road, Wadestown, Wellington 6012 Tenancy Tribunal Case 4857064 — Rent arrears

Claims and awards in Tenancy Tribunal application 4857064 — net $4,186.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears from 29.12.2023 to 11.2.2024	$5,946.00		Rent arrears from 29.12.2023 to 11.2.2024
Bond received		$1,760.00	Bond received
Total award	$5,946.00	$1,760.00
Net award	$4,186.00
Total payable by Tenant to Landlord	$4,186.00

Order

Jake Finch must pay Olivier Pellenard and Danya Freedman Pellenard $4,186.00 immediately, calculated as shown in the table below.
All other claims are dismissed.

Reasons

Both parties attended the hearing with Mr Olivier Pellenard attending the hearing by teleconference for the landlords.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

The tenancy commenced on 31 January 2020 and ended on 11 February 2024. The landlord resides in France. During the tenancy the parties had an informal agreement whereby the tenant, Mr Finch, carried out garden and other house maintenance work for the landlord, the cost of which would be deducted from rent payable. Generally, the practice was that Mr Finch would email Mr Pellenard an invoice or similar record of the costs of the work, and he was entitled to automatically deduct the costs from the following fortnightly rent payment due.
Unfortunately, the landlord did not keep a rent record during most of the tenancy nor regularly reconcile the rent payable, the rent payments received and the costs charged by the tenant. After almost 4 years, the landlord gave notice to end the tenancy and it was only then that Mr Pellenard began the process of reconciling rent payments received with maintenance costs charged by the tenant. On or about 28 December 2023, the landlord advised the tenant that there were significant arrears which would be $6,258.68 by 12 January 2024.
The landlord provided rent records for the entire tenancy which he only prepared recently to show rent arrears accumulating from March 2020. He also prepared a schedule of work charged by Mr Finch during the tenancy which they agreed must offset any rent owed. I am not satisfied about the accuracy of those rent records as discussed at the hearing. Mr Finch was also uncertain as to whether the rent record was accurate, but he did not provide any evidence of payments he made that are not recorded on the summary and nor did he provide any evidence of the costs he charged during the tenancy. The landlord claims that the arrears total $10,379.68 less the bond received of $1,760 which leaves a balance of $8,619.68.
I have considered whether Mr Finch should pay the full amount of arrears. I have decided that he should only be liable for rent from 29 December 2023 to 11 February 2024 (“the last period”), as he confirms that he made no rent payments nor did any maintenance work for the landlord during the last period. Mr Finch also accepts this amount as owed. Prior to this, rent payments appear to be fairly regular except for a large gap of 8 weeks between September and November 2022. The rent accumulating in the last period is $5,946. The bond of $1,760 already received by the landlord must be deducted from that sum.
I find that Mr Finch is not liable for the full amount of arrears because they should have been brought to his attention well before November 2023, and this application should have come to the Tribunal much sooner than 10 April 2024 (the date the application was filed), given the claim of arrears accumulating since 2020, including the large amount between September and November 2022. That is because the landlord has a duty to mitigate, in other words minimise or reduce, the amount of their losses. Section 49 Residential Tenancies Act 1986 (RTA) imposes an obligation on a landlord to mitigate their losses for breaches of a tenancy agreement. The landlord has failed to mitigate his loss in two respects: by failing to keep an accurate rent record (as required by section 30(1) RTA) with a running balance that would have alerted both parties to any arrears which they might’ve resolved sooner; and, failing to bring an application to the Tribunal for the arrears and/or to terminate the tenancy.
In summary, the length of time over which the arrears have been allowed to accumulate, and the failure by the landlord to take reasonable steps to address the arrears amounts to a failure to mitigate their loss.
Section 85 RTA also states that the Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case. The order made regarding rent arrears is my determination of the merits and justice of this case.

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.
The landlord claims that a wooden gate at the end of the exterior deck had broken off its hinges and was missing. He seeks to recover the costs of a replacement gate.
The tenant says that the gate flew off its hinges in high winds in 2020 and he found it lying in the bush and placed it under the house. He cannot explain why it was not still under the house when the tenancy ended. He says he notified the landlord of this at the time, likely by an email or WhatsApp message. He says that the landlord did nothing about it, and never inspected the premises (nor instructed any agent to inspect on his behalf) during the four-year tenancy, so did not raise this as an issue until after the tenancy ended, when he did carry out an inspection. The tenant submits he is not responsible for the gate breaking free of its hinges in high winds.
The landlord denies that he was informed about the gate and says that he has checked all the messages between him and the tenant over the last 4 years and cannot find a message about the gate. He also confirmed that he did not carry out any inspections of the premises during the tenancy.
After considering the available evidence, I accept the tenant’s advice that the gate blew off its hinges in the wind. In those circumstances, I do not find that the tenant is responsible for replacing the gate because it was not caused by any careless or intentional conduct on his behalf. The claim is dismissed.
As the Landlord has not substantially succeeded with the application, no orders suppressing his name and identifying details are made, nor is he awarded reimbursement of the filing fee on the application.
As discussed at the hearing, I encourage the landlord to ensure in future that he keeps an accurate rent record from the start of the tenancy as required by s30 RTA. He should also keep any arrangements with tenants for work separate from the rent record to avoid the difficulties he has encountered in bringing his claim to the Tribunal. The landlords are in the business of running a rental property and must ensure they are familiar with and comply with the obligations of the RTA. Ignorance of the law is no excuse for failing to do so.

Claims and awards in Tenancy Tribunal application 4857064 — net $4,186.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears from 29.12.2023 to 11.2.2024	$5,946.00		Rent arrears from 29.12.2023 to 11.2.2024
Bond received		$1,760.00	Bond received
Total award	$5,946.00	$1,760.00
Net award	$4,186.00
Total payable by Tenant to Landlord	$4,186.00

Order

Jake Finch must pay Olivier Pellenard and Danya Freedman Pellenard $4,186.00 immediately, calculated as shown in the table below.
All other claims are dismissed.

Reasons

Both parties attended the hearing with Mr Olivier Pellenard attending the hearing by teleconference for the landlords.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

The tenancy commenced on 31 January 2020 and ended on 11 February 2024. The landlord resides in France. During the tenancy the parties had an informal agreement whereby the tenant, Mr Finch, carried out garden and other house maintenance work for the landlord, the cost of which would be deducted from rent payable. Generally, the practice was that Mr Finch would email Mr Pellenard an invoice or similar record of the costs of the work, and he was entitled to automatically deduct the costs from the following fortnightly rent payment due.
Unfortunately, the landlord did not keep a rent record during most of the tenancy nor regularly reconcile the rent payable, the rent payments received and the costs charged by the tenant. After almost 4 years, the landlord gave notice to end the tenancy and it was only then that Mr Pellenard began the process of reconciling rent payments received with maintenance costs charged by the tenant. On or about 28 December 2023, the landlord advised the tenant that there were significant arrears which would be $6,258.68 by 12 January 2024.
The landlord provided rent records for the entire tenancy which he only prepared recently to show rent arrears accumulating from March 2020. He also prepared a schedule of work charged by Mr Finch during the tenancy which they agreed must offset any rent owed. I am not satisfied about the accuracy of those rent records as discussed at the hearing. Mr Finch was also uncertain as to whether the rent record was accurate, but he did not provide any evidence of payments he made that are not recorded on the summary and nor did he provide any evidence of the costs he charged during the tenancy. The landlord claims that the arrears total $10,379.68 less the bond received of $1,760 which leaves a balance of $8,619.68.
I have considered whether Mr Finch should pay the full amount of arrears. I have decided that he should only be liable for rent from 29 December 2023 to 11 February 2024 (“the last period”), as he confirms that he made no rent payments nor did any maintenance work for the landlord during the last period. Mr Finch also accepts this amount as owed. Prior to this, rent payments appear to be fairly regular except for a large gap of 8 weeks between September and November 2022. The rent accumulating in the last period is $5,946. The bond of $1,760 already received by the landlord must be deducted from that sum.
I find that Mr Finch is not liable for the full amount of arrears because they should have been brought to his attention well before November 2023, and this application should have come to the Tribunal much sooner than 10 April 2024 (the date the application was filed), given the claim of arrears accumulating since 2020, including the large amount between September and November 2022. That is because the landlord has a duty to mitigate, in other words minimise or reduce, the amount of their losses. Section 49 Residential Tenancies Act 1986 (RTA) imposes an obligation on a landlord to mitigate their losses for breaches of a tenancy agreement. The landlord has failed to mitigate his loss in two respects: by failing to keep an accurate rent record (as required by section 30(1) RTA) with a running balance that would have alerted both parties to any arrears which they might’ve resolved sooner; and, failing to bring an application to the Tribunal for the arrears and/or to terminate the tenancy.
In summary, the length of time over which the arrears have been allowed to accumulate, and the failure by the landlord to take reasonable steps to address the arrears amounts to a failure to mitigate their loss.
Section 85 RTA also states that the Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case. The order made regarding rent arrears is my determination of the merits and justice of this case.

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.
The landlord claims that a wooden gate at the end of the exterior deck had broken off its hinges and was missing. He seeks to recover the costs of a replacement gate.
The tenant says that the gate flew off its hinges in high winds in 2020 and he found it lying in the bush and placed it under the house. He cannot explain why it was not still under the house when the tenancy ended. He says he notified the landlord of this at the time, likely by an email or WhatsApp message. He says that the landlord did nothing about it, and never inspected the premises (nor instructed any agent to inspect on his behalf) during the four-year tenancy, so did not raise this as an issue until after the tenancy ended, when he did carry out an inspection. The tenant submits he is not responsible for the gate breaking free of its hinges in high winds.
The landlord denies that he was informed about the gate and says that he has checked all the messages between him and the tenant over the last 4 years and cannot find a message about the gate. He also confirmed that he did not carry out any inspections of the premises during the tenancy.
After considering the available evidence, I accept the tenant’s advice that the gate blew off its hinges in the wind. In those circumstances, I do not find that the tenant is responsible for replacing the gate because it was not caused by any careless or intentional conduct on his behalf. The claim is dismissed.
As the Landlord has not substantially succeeded with the application, no orders suppressing his name and identifying details are made, nor is he awarded reimbursement of the filing fee on the application.
As discussed at the hearing, I encourage the landlord to ensure in future that he keeps an accurate rent record from the start of the tenancy as required by s30 RTA. He should also keep any arrangements with tenants for work separate from the rent record to avoid the difficulties he has encountered in bringing his claim to the Tribunal. The landlords are in the business of running a rental property and must ensure they are familiar with and comply with the obligations of the RTA. Ignorance of the law is no excuse for failing to do so.

Tenancy Tribunal case 4857064 — Rent arrears at 88 Cecil Road, Wadestown, Wellington 6012

At a glance

Tenancy Tribunal case 4857064 — Rent arrears at 88 Cecil Road, Wadestown, Wellington 6012

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions