What was Tenancy Tribunal case 4889781 about?

The tribunal order states: [The tenant/s] to pay Roseanna Harmony Heyward $435.00 from the bond,

How much money was awarded in case 4889781?

Cleaning: $260.00 awarded to landlord; Cleaning: $200.00 awarded to tenant; Property Damage: $375.00 awarded to landlord

What type of tenancy dispute was case 4889781?

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

Where can I read the official tribunal order for case 4889781?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10879401-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4889781 about?

The tribunal order states: [The tenant/s] to pay Roseanna Harmony Heyward $435.00 from the bond,

How much money was awarded in case 4889781?

Cleaning: $260.00 awarded to landlord; Cleaning: $200.00 awarded to tenant; Property Damage: $375.00 awarded to landlord

What type of tenancy dispute was case 4889781?

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

Where can I read the official tribunal order for case 4889781?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10879401-Tribunal_Order_Redacted.pdf.

68 Treeton Place, Wakefield, Wakefield 7025 Tenancy Tribunal Case 4889781 — Property damage

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4889781 — net $435.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning	$260.00		Carpet Cleaning
Carpet damage	$375.00		Carpet damage
Prepaid credit for carpet cleaning		$200.00	Prepaid credit for carpet cleaning
Total award	$635.00	$200.00
Net award	$435.00
Bond	$2,100.00
Total payable by Tenant to Landlord	$435.00

Both parties attended the hearing.

The landlord has applied for compensation via the bond.

The tenant has applied for the return of her bond.

A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.

The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”

In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Background

This tenancy commenced 25 July 2021. It ended on 21 April 2024 after the landlord sold the house and vacant possession was required prior to settlement. An appropriate 90-day notice to terminate was served and adhered to.

Earlier, in June 2023 the landlord raised with the tenant the less than reasonably clean condition of the carpet in the premises, during a routine inspection. It was expected the carpet would be cleaned within six months but no formal notice to remedy was served on the tenant. The carpet was not cleaned until the end of the tenancy.

At the end of the tenancy some permanent stains were noticed and the parties worked collaboratively to attempt to have the stains professionally removed. This was unsuccessful.

The insurance excess per claim was $1000.00. A drafting error in the tenancy agreement incorrectly stated the excess as $1.00. Section 77(g) Residential Tenancies Act 1986 (“RTA”) provides that where it appears to the Tribunal that an agreement between the parties has been induced by misrepresentation, or mistake, or that any writing purporting to express the agreement between the parties does not accord with their true agreement, an order varying, or setting aside, the agreement or the writing (either wholly or in part). The insurance excess became moot as the excesses liable if two claims were lodged closely matched the quoted full replacement cost. If required, I would have treated the error in recorded insurance excess as a mistake and not binding.

The landlords concluded the sale of the premises approximately two weeks after the tenancy ended. The offer accepted for the purchase was unconditional but the landlords state at the joint pre-inspection between the vendors and purchasers the issue of the stains was raised. A commitment to try and resolve this was made by the vendors and settlement concluded. Further attempts to remove the stains failed and the now previous owners, after settlement, offered the purchaser $2000.00 cash payment due to the carpet.

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 carpet was not left reasonably clean. A carpet clean was arranged and the tenant contributed $200.00 towards the expected $400.00 cost. The actual cost was $260.00. The tenant submitted there was an agreement at commencement that the landlord would pay for any end of tenancy carpet cleaning. I do not find this evidentially established and given the uncertainty of how the carpet may have presented at the end of the tenancy, such a binding commitment from the landlord back then would be unusual.

I consider the carpet required cleaning at a cost of $260.00 and the tenant is liable for this cost. $200.00 had already been paid by the tenant towards this and that amount is applied as a credit in this order.

The amounts ordered are proved.

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.

“Fair wear” is deterioration caused by the reasonable use of the premises. “Fair tear” is deterioration caused by the ordinary operation of the forces of nature. Importantly, intentional or careless damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.

It is accepted by the tenant there was a permanent stain in one bedroom, caused during the tenancy. The landlord produced a photo of a stain in a second bedroom, taken several days after the tenancy ended. More photos were provided by the landlord from later in May after the new owners had moved in. These also showed stains in a number of areas. Some correlated to prior photos, others were not so readily aligned. The tenant submitted there was further staining evident that was not apparent at the end of the tenancy.

Having considered the evidence and submissions, I find it proven that there was permanent staining of the carpet in one bedroom. The quoted replacement cost was approximately $1000.00. It was not replaced. The evidence and timelines are not conclusive regarding the cause and damage in the second bedroom and I do not consider that in this determination.

The proven damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.

Should landlord compensation be ordered?

It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party should be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.

Normally, a loss such as here is established by a subsequent cost. For physical damage this will usually take the form of an invoice. However, an award can recognise a future loss in such cases where incurring the cost in real time is not practical or desirable. Such an award may take the form of compensation for accelerated depreciation, such that future replacement is more than likely required sooner than might have been reasonably anticipated, but for the breach.

Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract. The repeated attempts to remove the stains were undertaken in good faith by the landlord and supported by the tenant. The alternative approach was a timelier landlord claim, post tenancy, for compensation for the carpet damage.

The other consideration, as explained at the hearing, is depreciation and betterment.

The guiding principle in any claim such as here is restitution in integrum (a Latin term meaning “restitution to the original position”)– to place the injured party in the same position that it would have been in if the damage had not occurred. Thus, the appropriate measure of compensation for careless damage is the difference in value immediately before and immediately after the damaging act.

However, in practicality, this principle is oversimplified, as it is often nearly impossible to place a party in the exact same position for a variety of reasons and the Tribunal’s task becomes to attempt to do so as closely as possible through any compensation order. To prevent overcompensation or a windfall to the applicant, the concept of betterment has developed in the jurisprudence, which essentially limits an applicant’s award on account of being placed in a better position than prior to the loss.

As best can be ascertained, the carpet was newly laid in 2019. This makes it some five years old at the end of the tenancy. It is not disputed that there were some, less obvious, preexisting stains evident on the carpet.

The economic life of such carpet, given the prior history, is set here at eight years. That does not ignore that carpet may have a useful life beyond that timeframe.

Taking $1000.00 as the approximate replacement cost of the one bedroom evidenced, and depreciating at the rate indicated above, leaves a residual carpet value of $375.00.

I must then consider if the landlord has suffered a loss, given the lack of carpet replacement, the subsequent sale and later compensation offered to the new owner by the vendors.

A direct loss to the landlord is not obvious. If the carpet was as stained during the marketing of the house and reasonably apparent to the bidding purchaser before their unconditional offer, I must consider whether caveat emptor applies (“let the buyer beware”). This phrase essentially means a buyer is responsible for making sure they are satisfied prior to a purchase.

If the more extensive staining occurred after the tenancy ended, and before or after the house purchase concluded, is the tenant liable? I would suggest not.

Essentially, if the staining, as presented, was there prior to an offer to purchase, it is assumed the offered price reflected the “as is” state, including the carpet. That would indicate the purchaser had limited subsequent recourse to the vendor but that is not something I need to determine here. There was no contractual obligation on the vendor to replace the carpet. That they did offer compensation appears part pre-settlement negotiation, and part a sense of moral duty when it became apparent later that the stains would not come out. To date, the new owners have not replaced the carpet.

When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.

In Ziki Investments (Properties) Ltd v McDonald (HC Auckland CIV2008-404- 0038, 23 July 2008), the High Court made it clear that s 85 does not give the Tribunal a carte blanche to decide cases simply on its perception of merits and justice, regard must always be had to the general principles of law. Section 85 can however be used as an aid to interpretation – the general principles of law should be interpreted or applied consistently with the merits and justice of the case where possible.

Given the overall circumstances in these applications, I have considered the intent and direction of s 85 RTA. I have determined it appropriate for the landlord to be compensated $375.00, being the depreciated value of one bedroom’s carpet. The additional cost incurred by the landlord (as vendor) remains with them. Filing Fee

I leave both parties to carry their respective filing fees. Suppression

Section 95A RTA states regarding suppression orders that 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 tenant requested suppression in her application. As she has been substantially successful, suppression is ordered.

Reasons

Claims and awards in Tenancy Tribunal application 4889781 — net $435.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning	$260.00		Carpet Cleaning
Carpet damage	$375.00		Carpet damage
Prepaid credit for carpet cleaning		$200.00	Prepaid credit for carpet cleaning
Total award	$635.00	$200.00
Net award	$435.00
Bond	$2,100.00
Total payable by Tenant to Landlord	$435.00

Both parties attended the hearing.

The landlord has applied for compensation via the bond.

The tenant has applied for the return of her bond.

In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Background

At the end of the tenancy some permanent stains were noticed and the parties worked collaboratively to attempt to have the stains professionally removed. This was unsuccessful.

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

The amounts ordered are proved.

Is the tenant responsible for the damage to the premises?

The proven damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.

Should landlord compensation be ordered?

The other consideration, as explained at the hearing, is depreciation and betterment.

The economic life of such carpet, given the prior history, is set here at eight years. That does not ignore that carpet may have a useful life beyond that timeframe.

Taking $1000.00 as the approximate replacement cost of the one bedroom evidenced, and depreciating at the rate indicated above, leaves a residual carpet value of $375.00.

I must then consider if the landlord has suffered a loss, given the lack of carpet replacement, the subsequent sale and later compensation offered to the new owner by the vendors.

If the more extensive staining occurred after the tenancy ended, and before or after the house purchase concluded, is the tenant liable? I would suggest not.

I leave both parties to carry their respective filing fees. Suppression

The tenant requested suppression in her application. As she has been substantially successful, suppression is ordered.

Tenancy Tribunal case 4889781 — Property damage at 68 Treeton Place, Wakefield, Wakefield 7025

At a glance

Tenancy Tribunal case 4889781 — Property damage at 68 Treeton Place, Wakefield, Wakefield 7025

At a glance

Award balance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Should landlord compensation be ordered?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Should landlord compensation be ordered?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions