What was the outcome of Tenancy Tribunal case 4891952?

The tribunal order states: The landlord’s claim for compensation/general damages, refund of the bond

How much money was awarded in case 4891952?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4891952?

The primary dispute was Mould & damp. Related themes: Smoke alarms, Property damage, Leaks.

Where can I read the official tribunal order for case 4891952?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10726014-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4891952?

The tribunal order states: The landlord’s claim for compensation/general damages, refund of the bond

How much money was awarded in case 4891952?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4891952?

The primary dispute was Mould & damp. Related themes: Smoke alarms, Property damage, Leaks.

Where can I read the official tribunal order for case 4891952?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10726014-Tenancy_Tribunal_Order.pdf.

29B Nukumea Common, Orewa, Orewa 0931 Tenancy Tribunal Case 4891952 — Mould & damp

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Reasons

Both parties attended the hearing.

The landlord appeared in person and the tenant appeared via telephone as he was unwell.

The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the 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 tenant did not remove all rubbish at the end of the tenancy. It says the tenant left a picture frame, bookcase, broom, washing basket and pegs at the premises, after he was supposed to have moved all his belongings out of the property by 4 May 2024. Further, the landlord proved it had sent the tenant text messages on 9, 10 and 11 May 2024 asking him to come and collect his belongings.

The landlord says the tenant did not return to the property to collect and dispose of his belongings, so it hired a flexi bin and disposed of the tenant’s belongings in this bin. It sought compensation for $59.78 for one third of the flexi bin that it says the tenant’s belongings took up.

The landlord produced an invoice for the flexi bin but could not produce any evidence of the tenant’s belongings it claims it had to dispose of. The tenant claimed he picked these items up. Without photographic or video evidence the tenant’s belongings were still at the property after the tenancy ended, and the landlord disposed of the items, I cannot award compensation to the landlord.

I dismiss the landlord’s claim for compensation for a third of the flexi bin for lack of proof it had to dispose of the tenant’s belongings and that these belongings took up one third of the bin. The tenant has stated he picked up the picture frame, bookcase, broom, washing basket and pegs himself by 11 or 12 May 2024. The landlord has not produced photographic or video evidence to prove its claim.

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 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 damage to the laundry wall, floorboards and floor covering was caused during the tenancy, that the damage is more than fair wear and tear and that the tenant should be held liable for this cost to repair this damage as it was caused by his careless act of omission.

The tenant says he had the washing machine at his prior tenancy and at his new tenancy and there was and is no sign of the washing machine leaking. Further, he produced a receipt for the replacement of a solenoid that was causing the washing machine not to work that shows a Samsung engineer came to look at it in the house on 26 August 2023, took it away to repair and reinstalled it on 11 October 2023. The tenant says there was no sign of any water damage at this time when the washer was taken away from the wall and disconnected from the tub.

The tenant also says he did not notice any leaking on the floor or smell and dampness in the laundry during his tenancy. The landlord confirmed that it did not observe any leaks or damp smells in the laundry during property inspections.

The landlord produced documents that show its insurance claim was declined as AMI considered the damage to be from a gradual leak and not a single event. The landlord also produced a plumber’s report that stated some potential causes of the leak (all having an origin with the tenants washing machine) but could not say conclusively what led to the leak, as the washing machine had been removed by then.

The landlord also provided a list of potential human errors that can lead to one off flooding events that can cause the type of damage evidenced in the photographs produced but she could not provide me with any evidence that led me to conclude on the balance of probabilities that any of these human error events had in fact caused the damage. The damage could just have easily come from a slow leak or a leak that went straight under the flooring that the tenant could not see and was not aware of.

I am not satisfied, on the balance of probabilities, that the landlord has proven the damage to the laundry was caused by an act or omission by the tenant that the tenant could have reasonably foreseen would result in this type of damage.

The tenant says he knew nothing of the leak until the tenancy ended and he moved his washing machine out of the laundry. He accepts he failed to tell the landlord about the leak damage he had seen when he was moving out. The landlord says his failure to bring this damage to her attention proves his liability for the damage. I disagree. While I agree the tenant should have alerted the landlord to the damage, I do not agree his failure to do proves the laundry damage was caused by the tenant’s careless acts or omissions.

The tenant confirmed the washing machine was reinstalled on 11 October 2023 by a Samsung engineer. If the engineer did not reinstall the washing machine correctly and that led to the damage complained of by the landlord, it would be Samsung that would be liable for the damage and not the tenant.

The landlord has not proven the tenant’s liability for the damage. It has been unable to prove how the tenant failed to take reasonable care of the laundry walls and floor during his tenancy, which resulted in the damage the landlord is seeking to hold him liable for under a careless damage claim. This claim is dismissed. Reimbursement of the filing fee

The landlord has not been wholly or substantially successful in is application. Section 102(4) of the RTA confirms the Tribunal may reimburse the filing fee to an applicant that has been wholly or substantially successful in its claims. Therefore, the landlord’s claim for reimbursement of the filing fee is dismissed.

Reasons

Both parties attended the hearing.

The landlord appeared in person and the tenant appeared via telephone as he was unwell.

The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

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

Is the tenant responsible for the damage to the premises?

Tenancy Tribunal case 4891952 — Mould & damp at 29B Nukumea Common, Orewa, Orewa 0931

At a glance

Tenancy Tribunal case 4891952 — Mould & damp at 29B Nukumea Common, Orewa, Orewa 0931

At a glance

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?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

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?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions