What was Tenancy Tribunal case 4909695 about?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 4909695?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4909695?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4909695?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10856571-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4909695 about?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 4909695?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4909695?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4909695?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10856571-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4909695 — Property damage

Order

The landlord’s application is dismissed.

Reasons

This hearing was conducted by teleconference. Attending the hearing were: Mr Barnabas Bulatiko representing Wendell Property Management Limited; Mr Barat Mistry, the owner; and [The tenant/s] for the tenants.
This tenancy began on 22 March 2022 and ended on 16 May 2023. The bond is no longer held, having been paid in full to the tenants.
The landlord has applied for compensation for damage to a pergola, claimed to have occurred during the tenancy. The landlord claims the insurance excess of $1,000.00. A quotation for full replacement of the pergola has been submitted ($8,011.59). This work has not been undertaken. The tenants dispute the claim, and have produced written statements, photographic evidence, and email correspondence.
It is accepted that on 18 February 2023 [The tenant/s] friend, Mr H, was manoeuvring a boat into the driveway of the premises and an aluminium fishing rod holder, which had not been folded down, hit the pergola (the February 2023 event). The owner and landlord, Mr Mistry, was onsite, and asked the tenants to dismantle and remove the pergola and dispose of it, which they did, placing the dismantled pieces into a skip bin that was onsite.
Mr Mistry has given evidence that he wanted the pergola removed for health and safety reasons. The delays in making the claim were due to his pre-occupation with other insurance claims resulting from flood damage to his other properties. General principles regarding responsibility for damage
The landlord claims compensation for damage. To be successful, 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 of the RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. 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) of the 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) of the 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) of the 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) of the 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. Analysis
In this jurisdiction, the party making the claim (the landlord) has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish with evidence that their claim is “more likely than not.”
In this case, I find the evidence to be evenly balanced and therefore, the landlord’s claim has not been established to the required standard. My reasons are set out below.
It is not disputed that Mr H was on the premises with the tenant’s permission, and he was manoeuvring the boat when the fishing rod holder struck the pergola. The RTA states that tenants are liable for the actions of people at the premises with their permission. However, the nature and extent of the damage to the pergola from the February 2023 event, and the reasons for the removal of the pergola are disputed by the parties.
The tenants state the pergola was upright after the February 2023 event, and they were unable to detect any visible damage to it. The photographs supplied by the tenants show that the structure was upright when it was being dismantled. The landlord has not produced any photographs or an independent assessment of the claimed damage from this event. Therefore, whether there was damage to the pergola from the fishing rod holder striking it in February 2023, and if so, the nature of this damage, is unclear.
The tenants have noted other relevant factors, including general wear and tear. Tenants will not be liable for damage due to fair wear and tear. The statement from Mr H is that he observed that the pergola was partly rotted, and that there was no definitive damage to the pergola as a result of the event. In his email of 29 May 2024 to Wendell Property Management, [The tenant/s] noted that the pergola looked to be 30 years old, was showing structural issues and signs of rot prior to the incident.
Mr Mistry’s evidence at the hearing is that he wanted the pergola removed for health and safety reasons, rather than because he did not like it. He had previously done some maintenance work to it. He accepts that he instructed the tenants to remove it.
Whether the pergola had to be removed for safety reasons due to concerns about its stability is not clear, as an assessment was not made at the time of the event or immediately afterwards. The available photographic evidence, which was produced by the tenants, is limited.
The tenants state that Mr Mistry had indicated that he did not like the pergola and was happy for it to be removed. In any event, and relying on his instruction, the tenants took the pergola down. No issues were raised at the time. The tenants state that had they been aware of this, they would not have removed the pergola. I accept that the tenants, in good faith, removed the structure at Mr Mistry’s instruction, believing he did not like it and wanted it removed. I also accept that the tenant and Mr H spent over three hours removing it.
Therefore, while it is not disputed that the event involving the fishing rod holder striking the pergola occurred during this tenancy, it has not been established, with sufficient evidence, that the February 2023 event caused sufficient damage resulting in the need to remove the pergola and replace it.
The option of repair is no longer able to be determined, since the pergola has been removed. In this regard, I agree with the tenant’s submission that they were never given a fair opportunity to remediate the alleged damage, or arrange for professionals to assess the cost of repairs.
The tenant and Mr H spent their own time undertaking the removal work, which must also be factored in. They used their own tools when carrying out this work. Compensation can only be awarded for loss arising from a breach. In this case, the landlord does not appear to have incurred any costs resulting from this event, since the pergola has not been replaced, and no work has been undertaken. The landlord has also had the benefit of the tenant and Mr H’s labour in removing the structure.
For the above reasons, the landlord’s claim is dismissed. Name suppression
As the tenants have been successful, their request for name suppression is granted. The name of [The tenant/s]’ friend, Mr H, is to also be suppressed. .

Order

The landlord’s application is dismissed.

Reasons

This hearing was conducted by teleconference. Attending the hearing were: Mr Barnabas Bulatiko representing Wendell Property Management Limited; Mr Barat Mistry, the owner; and [The tenant/s] for the tenants.
This tenancy began on 22 March 2022 and ended on 16 May 2023. The bond is no longer held, having been paid in full to the tenants.
The landlord has applied for compensation for damage to a pergola, claimed to have occurred during the tenancy. The landlord claims the insurance excess of $1,000.00. A quotation for full replacement of the pergola has been submitted ($8,011.59). This work has not been undertaken. The tenants dispute the claim, and have produced written statements, photographic evidence, and email correspondence.
It is accepted that on 18 February 2023 [The tenant/s] friend, Mr H, was manoeuvring a boat into the driveway of the premises and an aluminium fishing rod holder, which had not been folded down, hit the pergola (the February 2023 event). The owner and landlord, Mr Mistry, was onsite, and asked the tenants to dismantle and remove the pergola and dispose of it, which they did, placing the dismantled pieces into a skip bin that was onsite.
Mr Mistry has given evidence that he wanted the pergola removed for health and safety reasons. The delays in making the claim were due to his pre-occupation with other insurance claims resulting from flood damage to his other properties. General principles regarding responsibility for damage
The landlord claims compensation for damage. To be successful, 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 of the RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. 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) of the 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) of the 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) of the 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) of the 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. Analysis
In this jurisdiction, the party making the claim (the landlord) has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish with evidence that their claim is “more likely than not.”
In this case, I find the evidence to be evenly balanced and therefore, the landlord’s claim has not been established to the required standard. My reasons are set out below.
It is not disputed that Mr H was on the premises with the tenant’s permission, and he was manoeuvring the boat when the fishing rod holder struck the pergola. The RTA states that tenants are liable for the actions of people at the premises with their permission. However, the nature and extent of the damage to the pergola from the February 2023 event, and the reasons for the removal of the pergola are disputed by the parties.
The tenants state the pergola was upright after the February 2023 event, and they were unable to detect any visible damage to it. The photographs supplied by the tenants show that the structure was upright when it was being dismantled. The landlord has not produced any photographs or an independent assessment of the claimed damage from this event. Therefore, whether there was damage to the pergola from the fishing rod holder striking it in February 2023, and if so, the nature of this damage, is unclear.
The tenants have noted other relevant factors, including general wear and tear. Tenants will not be liable for damage due to fair wear and tear. The statement from Mr H is that he observed that the pergola was partly rotted, and that there was no definitive damage to the pergola as a result of the event. In his email of 29 May 2024 to Wendell Property Management, [The tenant/s] noted that the pergola looked to be 30 years old, was showing structural issues and signs of rot prior to the incident.
Mr Mistry’s evidence at the hearing is that he wanted the pergola removed for health and safety reasons, rather than because he did not like it. He had previously done some maintenance work to it. He accepts that he instructed the tenants to remove it.
Whether the pergola had to be removed for safety reasons due to concerns about its stability is not clear, as an assessment was not made at the time of the event or immediately afterwards. The available photographic evidence, which was produced by the tenants, is limited.
The tenants state that Mr Mistry had indicated that he did not like the pergola and was happy for it to be removed. In any event, and relying on his instruction, the tenants took the pergola down. No issues were raised at the time. The tenants state that had they been aware of this, they would not have removed the pergola. I accept that the tenants, in good faith, removed the structure at Mr Mistry’s instruction, believing he did not like it and wanted it removed. I also accept that the tenant and Mr H spent over three hours removing it.
Therefore, while it is not disputed that the event involving the fishing rod holder striking the pergola occurred during this tenancy, it has not been established, with sufficient evidence, that the February 2023 event caused sufficient damage resulting in the need to remove the pergola and replace it.
The option of repair is no longer able to be determined, since the pergola has been removed. In this regard, I agree with the tenant’s submission that they were never given a fair opportunity to remediate the alleged damage, or arrange for professionals to assess the cost of repairs.
The tenant and Mr H spent their own time undertaking the removal work, which must also be factored in. They used their own tools when carrying out this work. Compensation can only be awarded for loss arising from a breach. In this case, the landlord does not appear to have incurred any costs resulting from this event, since the pergola has not been replaced, and no work has been undertaken. The landlord has also had the benefit of the tenant and Mr H’s labour in removing the structure.
For the above reasons, the landlord’s claim is dismissed. Name suppression
As the tenants have been successful, their request for name suppression is granted. The name of [The tenant/s]’ friend, Mr H, is to also be suppressed. .

Tenancy Tribunal case 4909695 — Property damage

At a glance

Tenancy Tribunal case 4909695 — Property damage

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions