Published tribunal order
Tenancy Tribunal case 4919455 — Tenancy dispute
Decided 20 Jan 2025 · Published 20 Jan 2025 · Application 4919455
- Cleanliness
- Exemplary damages
- Harassment
- Healthy homes
- Mould & damp
- Property damage
- State of repair
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s and landlord’s name and identifying details.
- [The landlord/s] must pay [The tenant/s] $401.84 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $2,040.00 ([Bond number suppressed]) to [The tenant/s] immediately.
Reasons
- [ Redacted property managers] appeared for the landlord. The tenant appeared and was supported by [ Redacted support person].
- The tenancy commenced on 11 June 2022 and ended on 02 June 2024. The landlord’s claim was filed on 22 July 2024, and the tenant filed a counterclaim on 02 September 2024.
- The landlord’s claims are: i. That the tenant owes water rates, (Section 39 of the Residential Tenancies Act 1986 (The “Act”) ($108.16), ii. That the tenant is liable for damage to the walls in the hallway, (Section 40(2)(a) & 49B of the Act) ($1,995.04), iii. That the tenant is liable for damage to the wooden floor (Section 40(2)(a) & 49B of the Act) ($900.00).
- In brackets is the compensation sought.
- The tenant disputes the landlord’s claims and seeks a refund of the bond.
- The tenant’s claims are: i. That the landlord failed to maintain the heat pump (Section 45(1)(b) of the Act) (compensation to be advised by tenant), ii. That the landlord breached the tenant’s reasonable peace comfort and privacy (particulars: between 11 March 2024 and 22 April 2024 conducted five property inspections) (Section 38(2) of the Act) (compensation equivalent to three months’ rent), iii. That the landlord caused the tenant to engage cleaners unnecessarily ($829.00), iv. That the landlord has failed to return a rent overpayment of $510.00, v. That the landlord issued a notice to terminate the tenancy knowing that they were not entitled to do so (Section 60AA of the Act) (Exemplary damages of up to $6,000.00)
- The onus is on each party to prove their claims. The standard of proof in civil claims is on the balance of probabilities. Each party must provide evidence sufficient to establish that it is more probable than not the other has breached the terms of the tenancy agreement or the provisions of the Act. Landlord’s claims Water rates
- The landlord has produced water rates invoices for the periods 30 June 2023 to 28 September 2023 and 26 March 2024 to the end of the tenancy. These invoices were sent to the tenant for payment but remain outstanding. The amount claimed is for consumption only and does not include fixed charges. I am satisfied that the tenant is liable for the charges, and the amount claimed is awarded. Law - damage
- To succeed with a claim for damage the landlord must prove that damage occurred during the tenancy and is more than fair wear and tear.
- Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
- Under section 41 of the Act, tenants are liable for the actions of people at the premises with their permission.
- If this is established that the damage occurred during the tenancy and is more than fair wear and tear, the tenant must prove, to avoid liability, that they or someone at the property with their permission did not carelessly or intentionally cause or permit the damage.
- 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.
- Tenants are liable for the full 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.
- Where the damage is caused carelessly, and occurred after 27 August 2019, 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).
- In addressing carelessness, the question is whether the tenant, or person at the property with their permission, exercised a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective, not based on the subjective opinions of the tenant or landlord.
- In awarding compensation for damage, the Tribunal must also consider betterment and depreciation. The primary goal of compensation is to return the landlord to the position they would have been in had the tenant not breached their obligations. If compensation claimed would result in the landlord being better off than there were originally, the Tribunal may reduce the award to reflect betterment. In calculating any depreciation, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful lifespan. Hallway
- During the tenancy, the wallpaper in the hallway suffered damage. There is no dispute that the damage was the responsibility of the tenant. The parties agreed that repairs would be deferred until the end of the tenancy and would be completed by the tenant. The tenant engaged a contractor who completed the work.
- A dispute has arisen over the payment of the invoice. The tenant states that no quote was provided by the contractor, and they did not authorise the work. Although the work was completed by a contractor engaged by the tenant, the landlord is bringing the claim.
- The Tribunal can deal with disputes between landlords and tenants that arise out of the tenancy agreement. However, the dispute in this case does not arise out of the tenancy agreement but out of a contractual agreement between the tenant and the contractor. The landlord was not involved in that agreement and has not suffered any loss. This dispute is between the tenant and the contractor, not the landlord and the tenant. The claim is dismissed. Wooden floor
- The property has an open plan kitchen / dining / lounge area with polished wooden floors. The landlord has produced photographs taken at the end of the tenancy showing what they claim is water damage to a section of flooring where the kitchen meets the lounge. The landlord has produced photographs of the flooring at the commencement of the tenancy, which they claim do not show any damage.
- The landlord states that the area was covered by a large mat during the tenancy and the damage was not discovered until the end of tenancy inspection on 03 June 2024.
- A contractor engaged by the landlord has stated in their invoice that the damage is consistent with flooding causing the floor to warp and bend. The floor was re sanded and re varnished at a cost of $3,969.80. The landlord has insurance for careless damage and is claiming the excess of $900.00.
- The tenant denies responsibility. They have produced two short videos taken at the end of the tenancy, both of which show the floor. The tenant states that there is no evident warping or bending and that marking or staining can also be seen in other areas closer to the kitchen cabinetry, suggesting it is fair wear and tear. The tenant states they were not aware of the issue until after the end of the tenancy and denies there was any flooding.
- The tenant states they have children with special needs, and from early 2023, almost the entire floor was covered by a special water and stain resistant spongy mat which was designed to protect the floor beneath.
- The landlord states based on the tenant’s own evidence the floor was unprotected between the commencement of the tenancy and early 2023. They conducted an inspection around August 2022 but could not recall noting any damage. They further state there is no evidence produced supporting the special nature or qualities of the mat. However, they agree that the mat was spongy and may have retained moisture potentially damaging the floor beneath.
- The onus is on the landlord to prove that the flooring was damaged during the tenancy. Determining whether damage occurred during a tenancy involves a pre and post comparison.
- The photographs and the video produced show the floor from various angles under different lighting conditions. Some images show marks, while others do not. Some show the floor appearing to be glossier, while others show a floor with a matte effect. I am unable to make a proper before and after comparison. The landlord’s pre tenancy photographs also include a section of flooring with markings similar to those now claimed to be the result of damage.
- Given the lack of a clear before and after comparison, I am unable to be satisfied that the damage in question has in fact occurred during the tenancy. Additionally, floors in kitchens, dining rooms, and lounges are typically high use areas subject to fair wear and tear. The claim is dismissed. Tenant’s claims Heat pump.
- The tenant states that the heat pump was faulty, blowing cold air instead of hot. The tenant states that they raised this during an inspection in July 2023, at which the landlord advised them that the filters likely needed cleaning and to advise them if issues continued. The tenant cleaned the filtered but state that the issue did not improve. However, they did not notify the landlord until the next inspection in October 2023.
- At the October inspection, the landlord stated that they would inform the owner. Shortly afterward a technician visited and serviced the unit. Despite being assured that the unit was functioning properly, the tenant states the issues continued. Once again, they did not raise the matter until a subsequent inspection in April 2024.
- At the April inspection, the tenant states that the owner accompanied the property manager. When the issue was raised, they state the owner acknowledged that “there was a problem with the heat pump.” Despite this acknowledgement, the tenant states that nothing happened. The tenancy ended on 02 June 2024.
- The tenant states that the property was uncomfortably cold, causing their two young children, one of whom developed respiratory issues, to stay with family elsewhere. The tenant states that these respiratory issues improved following the end of the tenancy, suggesting that the lack of heating was a significant factor in the child’s unwellness. The tenant has produced a doctor’s letter dated 31 August 2024, confirming that one of their children suffers asthma. The letter notes that the symptoms largely resolved after moving properties. The doctors letter also contains a general observation, an undisputed fact, that well insulated, well- ventilated dry and warm homes free from mould are effective in reducing asthma.
- The landlord questions the accuracy of the tenant’s chronology of events. They state that the matter was first raised during an inspection on 22 August 2023, when they advised the tenant to clean the filter and report if problems continued. In September 2023, the landlord arranged for a technician to service the unit. The technician who serviced the unit did not find any fault.
- The landlord states that it was not raised again until the inspection on 18 March 2024. The landlord, who was present during the inspection denies that the owner acknowledged that there was a problem with the heat pump but recall the landlord commenting that the filters needed cleaning. The landlord states they advised the tenant to report any issues but that none were raised.
- The landlord states that there is no evidence of dampness or mould in the property. Law – provide and maintain.
- Section 45(1)(a) of the Act states that the landlord must provide the premises in a reasonable state of cleanliness.
- Section 45(1)(b) of the Act states that the landlord must provide and maintain the property in a reasonable state of repair, having regard to the age and character of the property and the period during which the property is likely to remain habitable and available for residential purposes.
- The landlord’s obligation is to investigate and repair any defect (in this case a possible infestation) brought to their attention within a period which is reasonable in the circumstances. As to what that period is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right whatever the problem might be. Decision
- Having considered the evidence I am not satisfied that the landlord has failed to respond appropriately when advised. I prefer the landlord’s account. There is no evidence of dampness or mould at the property. The child’s asthma may or may not have been attributable to the condition of the property. The doctor’s letter relies on the tenants self-reporting. The claim is dismissed. Interference with reasonable peace comfort and privacy.
- The tenant states that on 11 March 2024, the landlord conducted a routine inspection, after which they issued the tenant with a 14-day notice for failing to keep the property reasonably clean. The landlord conducted a follow up inspection on 22 March 2024. They were not satisfied that the tenant had remedied the breach and issued a second notice.
- A follow up inspection was arranged for 05 April 2024. The tenant arranged for the property to be professionally cleaned the day before. However, due to illness, the inspection was postponed to 08 April 2024. Despite professional cleaning, the landlord issued another 14-day notice. Another follow up inspection was conducted on 22 April 2024. The tenant states the cleaners again attended on that date. After a brief inspection, the landlord was satisfied that the notice had been remedied.
- The tenant has produced an invoice for $829.00. The tenant seeks reimbursement on the grounds that cleaning was unnecessary. The 14-day notices were unjustified, and the subsequent inspections constituted an unreasonable interference.
- The invoice includes attendances for cleaning on 04 April 2024, 22 April 2024, and a post tenancy clean on 03 June 2024. The tenant was charged $120.00 for cleaning on 04 April 2024, $50.00 for cleaning on 22 April 2024. The tenant explained that the lesser amount of $50.00 was recognition by the cleaner that the cleaning on 04 April 2024 may not have been up to standard. The post tenancy cost of $620.00 is unrelated to this claim.
- The landlord has produced tenancy inspection reports for 18 March 2024, 04 April 2024, and the end of tenancy inspection on the 04 June 2024. The landlord states that there was no report completed for the inspection on 22 April 2024.
- The landlord states that the 14-day notices were justified and the follow up inspections were conducted properly. Law
- Section 38(1) of the Act states that tenants have the right to reasonable peace, comfort, and privacy in the use of the premises. A landlord must not cause or permit interference with these rights.
- In the case of Smith and Floris, Auckland TT 1404/93 (9 March 1994), the Tribunal stated: Quiet enjoyment means effectively the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents. Balanced against that, however, one must bear in mind that landlord/tenant relationships tend to be between individuals and that will inevitably involve some interaction between them on a personal level. It is important not to allow a simple clash of personality to become the sole basis for a claim for breach of this type.
- Under section 39(3), any interference caused or permitted by the landlord that amounts to harassment is considered an unlawful act, for which exemplary damages may be awarded.
- The term “harassment” is not defined in the Act. However, in the case of MacDonald v Dodds CIV-2009-019-001524, DC Hamilton, 26 February 2010, the Court, in the context of section 38(3), preferred the dictionary definition of harassment over that provided in the Harassment Act 1997. The Court adopted the Oxford English Dictionary definition, which defines harassment as “to trouble, worry, or distress” or “to wear out, tire, or exhaust.”
- A landlord who seeks to exercise their rights outside the provisions of the Act risks being found to have acted in a manner that interfered with the tenant’s reasonable peace, comfort, and privacy.
- Even when a landlord enforces their rights in accordance with the Act (e.g., by serving notices) they may still do so in a way that constitutes an interference.
- Whether interference has occurred will depend on the proven facts and an objective assessment of whether the act in question exceeds what a tenant could reasonably be expected to endure under the circumstances. Decision
- Determining this matter involves an objective assessment as to whether the landlord’s actions, including the issuing of repeat 14-day notices and conducting of follow up inspections, were appropriate in the circumstances. The tenant has not provided any photographic evidence of the property from the relevant period and relies solely on those contained in the landlord’s inspection report. The onus of proof rests with the tenant. In this case, there is insufficient evidence to conclude that the notices were unjustified. The claim is dismissed. Notice to terminate without grounds.
- Having been given 90 days’ notice that the landlord intended selling the property the tenant vacated on 02 June 2024. The tenant claims that they have since been informed by a former neighbour that new tenants moved into the property approximately two or three weeks later.
- The property managers state that their involvement with the property ended with the tenancy. While they are unable to say when new tenants moved in, they are confident that it was more than two or three weeks after the end of the tenancy.
- The landlord has produced a letter from one of the property owners dated 17 December 2024. The letter states that in early 2024 the owners planned to restructure their property portfolio, which includes several rental properties. The owners, who are reportedly builders, state they intended to sell three properties, including this one. That they planned to renovate the kitchen and another part of the property and then put it on the market. However, the work was delayed, and in the interim other properties were sold instead, negating the need to sell this property, which they retained and re let. Law
- Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
- Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A of the Act.
- In the case of Borlase v Davies, Nelson TT95/95, 27 July 1995, the Tribunal held that a landlord’s notice to terminate a periodic tenancy was not necessarily invalidated for a change of reason subsequent to issue. The Tribunal confirmed the tenant must establish that the reason for giving the notice had not been genuinely held at the time the notice was issued. Decision
- The neighbour concerned has not provided a statement. The tenant states they have not approached the current tenant as they did not want to put them in a difficult position with their landlord.
- The onus of proof rests with the tenant. The landlord’s evidence has not been challenged. Based on the evidence, I am not satisfied the notice was issued without grounds. The claim is dismissed. Costs
- There are no orders made for reimbursement of the respective filing fees. An order made to one will cancel any order made to the other. Name suppression.
- Both parties seek name suppression.
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- Assessed globally I am of the opinion that both parties have been sufficiently successful in these proceedings, and both are granted name suppression.