How much money was awarded in case 4903320?

Cleaning: $1,250.00 awarded to landlord; Property Damage: $250.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Sanding And Painting Walls: $3,000.00 awarded to landlord; Replace Carpets Tenant Contribution: $3,887.00 awarded to landlord; Replace Curtains – Tenant Contributi…: $1,000.00 awarded to landlord

What type of tenancy dispute was case 4903320?

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

Where can I read the official tribunal order for case 4903320?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10906369-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 4903320?

Cleaning: $1,250.00 awarded to landlord; Property Damage: $250.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Sanding And Painting Walls: $3,000.00 awarded to landlord; Replace Carpets Tenant Contribution: $3,887.00 awarded to landlord; Replace Curtains – Tenant Contributi…: $1,000.00 awarded to landlord

What type of tenancy dispute was case 4903320?

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

Where can I read the official tribunal order for case 4903320?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10906369-Tribunal_Order_Redacted.pdf.

22 Bastille Court, Rangatira Park, Taupo 3330 Tenancy Tribunal Case 4903320 — Property damage

Q: What was Tenancy Tribunal case 4903320 about?

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

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Order

Claims and awards in Tenancy Tribunal application 4903320 — net $4,017.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Replace carpets tenant contribution	$3,887.00		Replace carpets tenant contribution
Cleaning: garage floor – landlord excess	$1,250.00		Cleaning: garage floor – landlord excess
Replace curtains – tenant contribution	$1,000.00		Replace curtains – tenant contribution
Repairs: sanding and painting walls	$3,000.00		Repairs: sanding and painting walls
Exemplary damages: failure to lodge bond within required		$250.00	failure to lodge bond within required
Exemplary damages: Retaliatory notice		$3,000.00	Retaliatory notice
Total award	$9,137.00	$3,250.00
Net award	$4,017.00
Total payable by Tenant to Landlord	$4,017.00

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.

[The tenant/s] must pay [The landlord/s] $4,017.00 immediately, calculated as shown in table below.

The Bond Centre is to pay the bond of $1,870.00 to [The landlord/s] immediately.

Both parties paid filing fees, both applications are partly successful. The Tribunal declines to order that one party reimburse the other for the filing fee.

Reasons

Both parties attended the hearings.

The tenant has applied for compensation and exemplary damages and a refund of the bond.

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

The tenancy began on 28 September 2020 and ended on 3 August 2024. The parties confirmed that the rent was paid throughout the tenancy and there was no request for either rent arrears or a rent credit. Tenant’s claims No written tenancy agreement

The first of the tenants’ claims is that the landlord failed to provide a written and signed tenancy agreement, including an insurance statement that was also required, at the beginning of the tenancy.

S13A states that landlords must provide tenants with a copy of a completed and signed tenancy agreement.

Breaching that obligation attracts a maximum award of exemplary damages of $750. See section 13(4) and Schedule 1A Residential Tenancies Act 1986

The landlords say they provided a partially completed tenancy agreement form to the tenants at the beginning of the tenancy and asked the tenants to complete it (including the name of both tenants and their relevant contact details). This never occurred and was not followed up.

The landlord said part of the reason for the omission was travel restrictions imposed during the Covid pandemic that meant they could not return to Taupo from Auckland.

They then attempted to have the tenancy agreement completed by the tenants when it was raised with them towards the end of the tenancy, but the tenants refused.

I am unable to find the landlord has intentionally failed to provide a written and signed agreement, which is the first requirement before the Tribunal can award exemplary damages. The evidence establishes that the agreement was provided, at least partially completed and the tenants asked to return it.

I accept that this would probably have been followed up, had the extended Auckland lock down not occurred which prevented travel to Taupo for the landlords.

I have also considered that there is a corresponding duty under s13 for tenants to sign and return tenancy agreements. Although I note that no exemplary damages apply to a tenant breach.

It is mitigating that the tenancy began during Covid travel restrictions and I have also taken into account that the landlords attempted to have the agreement completed when they became aware this had not occurred and the tenants refused. Finally it is relevant that the landlords have now employed a property manager to complete this and other RTA requirements and therefore ensure there are no further breaches.

I decline to award exemplary damages. Failure to lodge bond

[The tenant/s] 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 landlord received the bond in two instalments. The first on 30 September 2020, soon after the tenancy began, and the balance was paid on 29 December 2020. Both instalments needed to be lodged within 23 days of receipt to meet the RTA requirements.

The bond was not lodged until June 2024.

I find the landlord have committed an unlawful act.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

The landlord has committed an unlawful act. The landlord says the failure was an administrative failure, partly caused by allowing the tenant to pay the bond in two instalments, the second of which they had to chase up 4 months after the tenancy ended.

While that is mitigating, it also means that the failure to lodge the first instalment was highlighted 4 months later and then compounded by the second failure to lodge the second instalment. There is therefore an ongoing breach.

I have considered the landlord’s evidence that a text was sent to the tenants requesting them to return the bond lodgement form and that they believed until recently that the bond form needed to be signed by the tenants, before the bond could be lodged.

However just as that was a simple matter to check in June 2024, it was also simple to check in September and December 2020. There is an element of wilful ignorance, with an ongoing breach, that can fairly be called intention.

The breach has had significant consequences. It was one of the matters that lead to the filing of Tribunal proceedings.

There is also culpability on the part of the tenants, who were asked on more than one occasion to return the bond form and failed to do so.

I have considered all of these issues and determined that $250 is an appropriate exemplary damages award. Unlawful rent increase

There is no issue with rent increases earlier in the tenancy, so they are not outlined.

The rent was increased to $750 from 3 January 2024. The tenants had no issue with that and began paying the higher amount.

The landlord said he rang tenancy services to see if he could increase the rent again in March 2024, as he was having financial difficulties. He said he was told that he could do that if his costs had increased and both parties agreed.

On 7 March 2024 the landlord messaged the tenants to say that he was having financial difficulties and the neighbouring property tenants (he also owns that property) had agreed to pay $900 per week in rent, so he proposed to increase the rent to $900.

The tenants replied initially saying they would pay the rent increase, because of the “rental crisis” in Taupo, which meant they would have real difficulties finding somewhere else to live.

They later decided to “stand their ground” and tell the landlord that he could only increase the rent once every 12 months and it was unlawful to impose the significant increase. They also noted the lack of a written agreement and that their bond was not lodged.

The landlord replied saying that while he may not be able to increase the rent, he could sell the property.

90-day notice was then served.

The tenants claim both that the rent increase was unlawful and that the notice served in response was unlawful and retaliatory.

While a landlord cannot increase the rent more than once every 12 months, the rent increase was not imposed. The tenants paid the rent set in January 2024 until they left the property.

The Tribunal cannot award exemplary damages where a landlord attempts impose an unlawful rent increase as it is not considered an unlawful act.

The remedy would be for the Tribunal to disallow the additional rent claimed. In this case, the additional rent was not paid, is not claimed by the landlord and there is therefore no loss that has occurred for the tenants, in relation to the rent increase that can be compensated.

The tenants claim for compensation is dismissed. Was the landlord’s 90 day notice unlawful?

The tenants claim that the landlord’s 90-day notice was unlawful as the landlord did not intend to sell the property, when he gave the notice.

The landlord refutes this and has provided confirmation both that he put a “for sale” sign up at the property himself, that he had a photographer attend to take photos for the proposed listing and that he has listed the property with a real estate agent.

The landlord said that after this tenancy ended, he was approached by people wanting to rent the property, and he agreed to do that as he needed the rental income and the new tenants had expressed interest in purchasing the property. Ultimately, the new tenants have been unable to purchase the house but remain at the property as tenants paying $900 rent per week. He has an offer on the property, and provided that goes through, it will be sold.

S51 (2) of the RTA states that a landlord may terminate a tenancy by giving 90 day notice if the property is to be put on the market for sale within 90 days after the termination date of the tenancy.

I find that the landlord’s intention when he gave notice was to put the property on the market for sale. There is clear evidence supporting that intention. While the tenant’s suspicions regarding the intention are valid given the property has been rented again. Suspicion is not sufficient.

The evidence supports a finding that the notice is not unlawful.

Is the 90 day notice retaliatory?

Section 54 of the Act defines retaliatory notice as notice that is motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.

Issuing a notice to terminate a tenancy that is retaliatory is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. See section 54 and Schedule 1A Residential Tenancies Act 1986.

I am satisfied that the landlord, issued the notice, in part because of the Tenant’s refusal to pay the rent increase the landlord had requested as it was excessive and too soon after their last rent increase.

The tenants were perfectly entitled to point out to the landlord that he could not impose such a steep rent increase within months of the last increase. In other words, they were entitled to complain about the rent increase.

In response, to that complaint, they were issued with 90 day notice to leave. That means that the notice was retaliatory. In making that finding I acknowledge entirely that the tenant’s refusal to pay the rent increase demanded, was not the only reason for the landlord giving notice. The landlord’s financial difficulties and desire to sell to relieve some of that pressure was also a clear and probably the primary factor.

However, section 54 says that the tenant’s insisting on their rights to refuse the rent increase need only be part of the reason for being given notice to leave. The tenants message stating that “under the tenancy act section 24 and you knowing that increasing our rent is illegal we will not be paying the increased amount of $150 per week as you already put our rent up $50 at the beginning of the year.. we will continue to pay $750 from now onwards. We said we would pay the increase because we felt we had no other option with the rental crisis. But further discussions with other people we decided to stand our ground and not pay” was met with a text reply from the landlord “I will write you a letter tonight to inform you the house is officially on the market, and you have three months.”

I find the landlord has committed an unlawful act. The immediate issuing of notice in direct response to the tenant’s refusal to pay the unlawfully increased rent gives rise to an inference that the notice was motivated by the tenants “standing their ground” and refusing to pay the increased amount. They unequivocally had the right to do that.

The tenants are not requesting that the notice be set aside as they have left the property. They are requesting an award of exemplary damages.

Section 109(3) Residential Tenancies Act 1986 states that where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest.

S109(3)(A) removes the requirement for the Tribunal to consider the intent of the person issuing retaliatory notice and directs only that the Tribunal must be satisfied that it is just to make an award having regard to the effects of the unlawful act, the interests of the other party and the public interest.

The landlord’s intention was clearly to issue notice and end the tenancy when the tenants refused to pay the increased rent.

The effects of being issued retaliatory notice have been significant for the tenants, who outlined the real difficulties with finding alternative accommodation in Taupo for themselves and their children.

They note that the property has been relet, which raised their suspicion that the notice was issued for retaliatory reasons and to circumvent the restriction on raising the rent only once a year.

The landlord confirmed that the property is rented for $900 but noted his financial predicament was worsened when he faced a huge clean up cost after the tenancy ended. That claim for compensation, is considered separately.

I have considered all of these factors and set the award at $3,000 which is less than half of the maximum.

That award recognises the landlord’s submission that the 90 day notice could have been issued, in any event, as he wanted and had a right to sell the property. He absolutely had the right to do that and to give 90 day notice. What he could not do was issue the notice in retaliation and there is clear evidence he did just that. Landlords’ compensation claims General principles to establish that a tenant is responsible for repair costs in relation to 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 and animals at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

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. Those principles applied to this case.

The first requirement to establish any claim for compensation is that the landlord prove that damage to the premises occurred during the tenancy and the second is that the damage is more than fair wear and tear.

There is no written pre-inspection report as there was no written and signed tenancy agreement. There are no pre inspection photographs to consider.

This means the landlord is required to provide alternative evidence about the condition of the property at the beginning of the tenancy.

The landlord said that the property was in excellent condition at the beginning of the tenancy as it was a new build that had only been tenanted once prior to this tenancy. That tenancy ran for 15 months, and the tenants were a family with 3 or 4 young children. (statement provided).

While the landlord said that first tenant left the place “immaculate” and noted that there were no bond deductions, I do not accept that a 15-month tenancy with several children would cause absolutely no wear and tear. That is simply improbable.

Instead having considered the previous tenant’s evidence, the full bond refund and the landlord’s evidence, I find it is likely there was only minimal damage to the paintwork i.e. a small amount of fair wear and tear, to all surfaces.

It is also relevant that the tenants had a cat and dog. While I do not accept the landlord’s submission this was in breach of the tenancy agreement (there is not one), that does not alter the simple fact that the tenants are responsible for damage caused by the pets, just as they are liable for damage caused by their children. Compensation for repairs to walls

The landlord said the property required repainting throughout at the end of the tenancy, because the tenants had caused damage to almost all surfaces. He provided a quote from a painting contractor for $26,980 to complete the work. That is only a quote. The exact cost is unquantified as the landlord’s father, who is a painter and family members completed the painting. The exact hours and cost of materials was not provided.

The landlord’s insurance has covered the $26,980, and the landlord’s claim is that the tenants pay the insurance excess per room of $1,250 per room.

The tenants consider the damage to the walls and doors was caused largely by fair wear and tear. They do not consider they should have to pay the full costs claimed, noting that no issues were raised by the landlord, until the issue of the disputed rent increase arose, and the relationship between the parties deteriorated. They said that when the landlord raised the issue with them, they attempted to paint some surfaces, but acknowledge this was done in a hurry at the end of the tenancy.

I have considered the photographs and video provided of the walls throughout the tenancy at the end of the tenancy. The video was provided as the landlord said the photos did not do the damage justice.

The landlord is correct it is difficult to see the alleged damage in the photos.

The Tribunal considers damage claims that requires extensive zooming before the damage is evident, with a degree of caution. That is because damage that goes beyond fair wear and tear is generally easy to identify.

However, in this case the landlord also had an independent property manager complete an end of tenancy inspection. That report notes that the tenants had attempted to repair and paint most walls but that the paint was not well matched and was unevenly applied and the walls would need to be painted to rectify this. That was apparent from the video evidence viewed during the hearing.

The property manager noted that the skirting boards had marks and some scuffed paint. The landlord said he accepted some scuff marks would be fair wear and tear but said some were likely caused by the tenants’ dog and cat and children.

The landlord’s out of pocket expense is 8 insurance excesses of $1,250 (one for each room) which is $10,000. The final insurance excess is for repairing the floor in the garage, which is considered separately.

I have determined that the tenants should pay $3,000 of the total $10,00 cost for the wall painting and the full excess for the sanding and painting required in the garage. While difficult to be entirely accurate with a fair wear and tear assessment, the property has been tenanted for 5 years with several children and pets.

There is therefore a considerable element of fair wear and tear. Betterment and depreciation are also relevant. To allow the full amount claimed would be to return the property to its original condition, 5 years ago and the tenants are not required to meet that standard. I also do not have a detailed breakdown of the actual cost that the landlord is out of pocket because family completed the work as opposed to the insurance quote. The tenants queried the high insurance excess and the fact that it was applied per room. That is also relevant, as they were entitled to a landlord insurance disclosure before the tenancy commenced, which would have spelled out for them these details.

I have awarded the full insurance excess for the claim for repairs to the garage floor. That sanding and resurfacing was required because of pet urine/damage and the tenants are liable for the cost.

Compensation for replacement of shower door?

The landlord also claims an insurance excess in relation to repairs to the shower door that was damaged during the tenancy.

The tenants considered they were responsible for this cost as the damage occurred during the tenancy. However, that is not the only consideration as the damage must also be caused by careless or intentional actions before tenants are liable for the repair cost.

I am satisfied that the damage to the shower was caused accidentally when the tenant fell, and this was not careless. She said the shower floor was slippery, probably because of a soap or shampoo residue left by one of the children who had been in the shower before her. She did not notice the soap, but fell heavily when she slipped, injuring herself and damaging the door.

In my view the damage is accidental as it did not occur because of a lack of care on the tenant’s part. In other words, care was used but the accident (and therefore the damage) happened anyway.

The claim is dismissed. Cost of replacing carpets

The landlord claims $7,774.00 for replacement of the carpets at the end of the tenancy.

Carpet cleaners that the tenants had asked to attend to clean the carpets the day after the tenancy ended have provided a report saying they did not clean the carpets because the carpets were so extensively stained and damaged by pet urine that cleaning would be futile. The landlord’s insurance has declined to cover the loss and the landlord seeks the full replacement cost. The carpets have been replaced.

The District Court has held that damage caused by pets (excrement and scratching) can be considered intentional. “Damage is 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.

I have awarded half of the replacement cost as the carpet was five years old and therefore the amount awarded needs to take account of depreciation and betterment principles. Replacement of drapes

The landlord also claims $6,463 for replacement of drapes. The evidence establishes that three drapes were damaged, probably by a pet. However, the evidence falls well short of establishing damage to any other drapes or that the tenants are liable for the cost of replacing all drapes throughout the house.

While the landlord said replacing all drapes was necessary to match them, the drapes are a standard grey colour. The alternate submission, that the drapes were damaged by urine is disputed and ultimately not proven.

I have awarded $1,000 as a reasonable tenant contribution towards the replacement cost.

The amounts ordered are proved.

Both parties are awarded name suppression as both are substantially successful in the claims made.

Neither party is ordered to reimburse the other for the filing fee as both have been substantially successful in the claims made.

Order

Claims and awards in Tenancy Tribunal application 4903320 — net $4,017.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Replace carpets tenant contribution	$3,887.00		Replace carpets tenant contribution
Cleaning: garage floor – landlord excess	$1,250.00		Cleaning: garage floor – landlord excess
Replace curtains – tenant contribution	$1,000.00		Replace curtains – tenant contribution
Repairs: sanding and painting walls	$3,000.00		Repairs: sanding and painting walls
Exemplary damages: failure to lodge bond within required		$250.00	failure to lodge bond within required
Exemplary damages: Retaliatory notice		$3,000.00	Retaliatory notice
Total award	$9,137.00	$3,250.00
Net award	$4,017.00
Total payable by Tenant to Landlord	$4,017.00