Published tribunal order
Tenancy Tribunal case 4913675 — Rent arrears
Decided 2 Jul 2024 · Published 2 Jul 2024 · Application 4913675
- Rent arrears
- Property damage
Party names are redacted in the official published order.
Order
- The application of [the tenant] for compensation is dismissed.
- There is an order for non-publication of the names of both parties and identifying details.
- The Bond Centre is to pay the bond of $2,600.00 to [the landlord] immediately.
- [The tenant/s] must pay [The landlord/s] $5,887.44 immediately, calculated as shown in table below.
Reasons
- The tenant, [Ms X] attended the hearing. The landlord also attended. There was no appearance by the other tenants.
- The tenant applied for compensation for the loss of personal items at the end of the tenancy.
- The landlord has applied for refund of bond rent arrears and compensation, and reimbursement of the filing fee following the end of the tenancy. Overview
- The tenancy ended on 29 May 2024 as the result of an eviction notice for unpaid rent. Following a mediated order on 9 May 2024 the tenant was to clear rent arrears by paying the rent plus an additional amount. It was a condition of the order that if the rent or arrears were not paid on time, the tenancy would terminate. In fact, the rent arrears increased as a result of non-payment of the agreed amounts and so on 23 May 2024 the bailiff posted an eviction notice explaining that the tenants would have to vacate by 29 May 2024.
- The tenants were duly evicted. The tenants gave the keys to the bailiff who locked the property Their belongings remained. On Thursday 30 May the tenants advised the landlord that a truck was being booked for Tuesday 4 June (3 June being a public holiday).
- On Saturday 1 June at 13.55 the tenant texted, asking if they could get some of their smaller items including food and clothes and also, they wanted to move items into the lounge so that they could hire a truck.
- The landlord arranged for a contractor to allow access to the property for them between 11am and 4.30pm on 3 June (which was a public holiday). The tenant said that when she arrived at 12.30pm the sliding door was open and a window was open.
- Both parties produced a copy of a text which is headed “Yesterday 9.17”, in which the tenant says: Can you tell me who has been into the house as we drove up to check everything was ok, window is wide open and a sliding door connected to a bedroom was unlocked, Taps had been left on, lights as well, and I know the bailiff locked up the house [...] things have bee3n taken I now as soe things look to be out of place and moved looking through the kitchen windows and I’m very frustrated. My stuff was meant to be safe there [...]
- The landlord says this text was received on 3 June. That would mean it was sent before the contractor attended to open the property up for the tenant.
- On 4 June again arrangements were made for the property to be opened, but the tenants did not arrive. The landlord tried to contact the tenant, but the phone was switched off.
- On 5 June the tenant lodged an application with the Tenancy Tribunal seeking $25,000 in compensation. She said that on 29 May the bailiff had allowed her daughter to gather her clothing and her new-born’s clothing and things they could move into the car. The tenant also sought exemplary damages, saying that she made numerous attempts to ask if she could get some of the smaller belongings. She said that she left medication, personal documents including birth certificates, marriage certificates and sentimental items. She said that a window had been forced open and a sliding door was unlocked.
- At the hearing the tenant said that three urns were missing: her mother’s, her son’s and her grandmother’s.
- On 5 June the tenant’s support worker made contact with the landlord advising that a truck was being arranged and asking for all contact to go through her.
- The landlords received reports from the neighbours of people accessing the property. They produced a copy of a Police Acknowledgement Form recording that on 6 June they had reported this to the Police.
- On 7 June the landlord texted the support worker wanting to know what was happening. She recorded that she had tried phoning the day before but could not get through.
- Access was arranged again for 12 June and the tenant removed all belongings. The support worker arranged for cleaning and tidy up to be done. The tenant’s claims
- The landlords deny that they are responsible for any loss incurred by the landlord.
- The onus is on the tenant to provide evidence of her loss and to prove that the landlord is responsible for it. The standard of proof is on the balance of probabilities.
- Under section 40(1)(e), at the end of the tenancy, the tenant’s obligations include removing all their goods. The tenant did not do so.
- Sections 62 and 62A sets out the landlord’s responsibilities for any items left behind. This includes disposing of food, making efforts to contact the tenant to agree on a period within which the tenant is to collect the goods, and if that fails to assess the market value of the goods and either dispose or store them, if the market value exceeds the cost of storage.
- There is nothing to suggest that the landlords did not comply with those obligations.
- There is no obligation on the landlord to take responsibility for the safekeeping of the items while waiting for the tenants to remove them. I am satisfied that the landlords tried to arrange times for the tenant to collect their belongings and would have preferred that the items had been removed sooner.
- I am not persuaded that the landlords are responsible for any loss that the tenants may have incurred following the end of the tenancy. The tenant’s claim is dismissed. The landlord’s claims
How much is owed for rent?
- The tenancy ended on 29 May 2024. Partial payments of rent had been made during the tenancy. By three weeks the rent was in arrears.
- The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy was $6,732.00. That amount is ordered.
- Because the tenant did not remove all her belongings until 12 June, the landlords were unable to rent the property. They seek a further two weeks’ rent. There was one partial payment on 5 June, but the balance owing up until $7,869.00. I find that is reasonable. The alternative was for the landlord to clear the property out which would have taken considerable time and expense, and place everything in storage. That would have cost the tenant more.
- The amount ordered for rent arrears is $6,732, and I order $1,137 as compensation for not vacating the premises, making a total of $7,869.00.
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 and remove all rubbish. See section 40(1)(e) Residential Tenancies Act 1986.
- The premises were reasonably clean and tidy but some rubbish was left behind at the entrance of the property.
- The landlord claimed a contractor’s time to take the rubbish to the dump. The dump fee was for a trailer load, which is $110.00. I was not satisfied that a trailer was required. During the hearing I looked up the Council fees and noted it was $80.00 for a carload.
- The landlord then said that it included a washing machine that was left at the property. It is evident in the photos. The tenant said that was a hire machine.
- There is no mention of a washing machine in the invoice from the Pravo Property Maintenance and Cleaning Services. It mentions bagging rubbish. I order $160 including labour for rubbish removal.
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.
- 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 provided photographs and an invoice for $438.00 for repairing the hole ($350.00) and replacing two broken window latches ($88.00).
- The photos show a hole in the wall. I am satisfied that the damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- The photos also show two broken latches. The tenant was unaware of these. However, the photos show that a band had been applied to the window to keep it shut. I find it more likely than not that the latches were broken during the tenancy and the damage is more than fair wear and tear.
- The amounts ordered are proved.
- Because [The applicant/s] has substantially succeeded with their claim I have reimbursed their filing fee.
- Although the tenant has been unsuccessful, I have decided to order name suppression on the basis that it appears the tenant is suffering from poor mental health. Her application refers to post-traumatic stress disorder. At the hearing I observed to her that she seemed very flat and low. I encourage her to continue with the support she is getting.