What was Tenancy Tribunal case 4941015 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 4941015?

Fixed Charges Paid For Supply Of Wat…: $500.00 awarded to landlord

What type of tenancy dispute was case 4941015?

The primary dispute was Mould & damp. Related themes: Cleanliness, Healthy homes, Property damage, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4941015?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11045380-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4941015 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 4941015?

Fixed Charges Paid For Supply Of Wat…: $500.00 awarded to landlord

What type of tenancy dispute was case 4941015?

The primary dispute was Mould & damp. Related themes: Cleanliness, Healthy homes, Property damage, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4941015?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11045380-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4941015 — Mould & damp

Claims and awards in Tenancy Tribunal application 4941015. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
fixed charges paid for supply of water to the premises from 16 June 2018 to the end of the tenancy. From that sum should	$500.00		fixed charges paid for supply of water to the premises from 16 June 2018 to the end of the tenancy. From that sum should

Claims and awards in Tenancy Tribunal application 4941015. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
fixed charges paid for supply of water to the premises from 16 June 2018 to the end of the tenancy. From that sum should	$500.00		fixed charges paid for supply of water to the premises from 16 June 2018 to the end of the tenancy. From that sum should

Order

The Tribunal orders suppression of the parties’ names and identifying details.
The landlord must compensate the tenant for all fixed charges paid for supply of water to the premises from 16 June 2018 to the end of the tenancy. From that sum should be deducted $500.00, payable by the tenant to the landlord as compensation for the cost of treating the oil stain on the parking pad.
All other claims by either party are dismissed.
The Bond Centre is to pay the bond of $1,260.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing. Background
The tenant entered into a residential tenancy agreement for this tenancy on 9 April 2008. The landlord was the then owner, [property company], a business operated by the landlord’s father ([the landlord’s father]).
The [the landlord’s father] died in 2018 and the landlord became owner of the property, initially in his capacity as executor in his father’s estate and thereafter in his own right.
No new tenancy agreement was entered into, and I find that the landlord assumed any pre-existing obligations of [the landlord’s father] under the agreement he inherited.
No inspections of the premises were carried out by [the landlord’s father].
The coverings on the balcony were replaced in 2022.
The landlord conducted his first inspection of the premises on 5 April 2024.
After that inspection the tenant emailed the landlord: “Dear [The landlord/s], As we talked about on Friday the 5/4/24, I would e-mail you back. You presented we me with two options: One, ending the tenancy daughter can move into the property or; Two, raising the rent from $543 to $700.00 weekly so you can support your daughter financially. Out of these two, I've decided to go with option two. After the inspection of the unit by you on Friday 5/4/ 24, I am pleased that you are aware of the repairs that need to be attended to. Together we looked at: -Upstairs in the lounge under the sliding door to the balcony there a deterioration of the floorboards and carpet. Which I'm currently covering up with a rug -Carpet aged and worn throughout the unit -No fixed heaters in the unit -Lighting fixture an upstairs bedroom ceiling is aged and falling apart -Cracks on ceiling / wall around the staircase and upstairs bedroom -Upstairs shower tap leaking -Steps in the backyard leading into the garage loose and unstable.”
A further inspection was carried out on 17 April 2024 with the landlord’s builder which included an examination of the damage to the flooring by the ranch sliders in the main bedroom and lounge.
On 30 April 2024 the tenant gave 28 days’ notice of termination, ending the tenancy on 28 May 2024.
The tenant filed her application on 16 July 2024. The landlord filed his cross application on 22 August 2024. The Claims
The tenant seeks: a. refund of the bond b. exemplary damages for failure to comply with insulation requirements c. compensation for fixed water charges paid through the tenancy.
The landlord seeks compensation for the cost of: a. cleaning oil stains on the parking pad b. replacing the garage door c. replacing water damaged floorboards and wallboards
Each of those claims is addressed separately below. Water rates
There is no dispute that the tenant has paid all [water] charges, including fixed charges, throughout the tenancy.
Section 39 RTA provides that the landlord is responsible for all outgoings in respect of the premises except those that are exclusively attributable to the tenant’s occupation of the premises, which includes charges for the supply of water if the water supplies are charges on the basis of consumption.
What that means, is that the tenant is required to pay for her metered water/ wastewater usage. The landlord is required to pay the fixed charges. Accordingly, since the tenancy started the landlord has wrongly required the tenant to pay the fixed charges which are landlord’s responsibility.
As noted, my finding is that the landlord assumed the responsibilities of [the landlord’s father], on becoming owner under a continuing tenancy, no new agreement having been entered into between he and the tenant. The tenant’s entitlement to recover overpaid water charges is not confined to the period before or after the current landlord became owner of the property.
Under section 77 RTA the Tribunal has jurisdiction to determine disputes between a landlord and a tenant, subject to the limitation Act 2010. Section 11(1) of the Limitation Act provides that, “It is a defence to a money claim if the defendant proves that the date on which the claim is filed is at least 6 years after the date of the act or omission on which the claim is based...”
What that means in this context, is that the landlord cannot be required to compensate the tenant for wrongly having had her pay his fixed water charges before 16 June 2018, 6 years before the date of the tenant’s application (although of course the landlord may choose to do so, now knowing that the tenant paid those charges when the landlord was responsible for them).
Both parties are confident that, with a determination having been made as to liability, the compensation amount can be calculated by agreement. If not, leave to make a further application in respect of this issue is reserved. Insulation
The tenant questions whether compliant insulation was installed in the ceiling cavity at the premises when required. None was installed during her tenancy. She accepts that no underfloor insulation is required as it is a concrete floor.
The landlord’s evidence is that when the property was being refurbished for sale, the existing insulation was checked and found to be compliant.
No corroborating evidence has been filed by either party.
As this is the tenant’s claim, the onus is on her to provide evidence that proves her claim on the balance of probabilities. In the absence of such evidence and having regard to the evidence given by the landlord about the matter, I do not find that claim proved, and it is dismissed.

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 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. Oil stains
The landlord has provided photographs showing significant oil staining on the concrete pad in front of the garage at the premises.
The landlord’s evidence is that that the pad was resurfaced in 2015/ 16 so the stains must have happened during the tenancy.
The tenant’s position is that: a. she should not be responsible for the oil stains as other people, including the landlord’s contractors, parked on the pad and may have been responsible for the staining; b. she attempted to clean the stains before the tenancy ended, though she had done enough and was not told that the landlord was dissatisfied with the state of the pad following the final inspection or given an opportunity to make further attempts at getting rid of the stains.
The evidence persuades me that the stains happened during the tenancy. The evidence also suggests that it was occupants of the premises who primarily used the pad for parking and I find it more likely than not that the staining occurred from vehicle used by the tenant or persons at the premises with her consent. (see s. 41).
The landlord is entitled to compensation for the resulting loss. The landlord’s obligation to mitigate that loss must also be considered.
Section 49 RTA requires that, “Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.”
The landlord had the oil stain removed at a cost of $850.00 + GST. The txt providing the quote is dated 15 August 2024, 2 ½ months after the end of the tenancy.
That being so, it would seem to me reasonable to have attempted mitigation of the loss by giving the tenant an opportunity to make further attempts to remove the stain. In my view, had that opportunity been given, it is more likely than not that the tenant could have remedied the stain at a lesser cost to herself than that charged by the landlord’s contractor. The compensation awarded of $500.00 takes that into account. Garage Door
The landlord has provided photographs from the end of tenancy inspection showing holes in the garage door.
The tenant has produced an entry inspection report which is signed by her but not [the landlord’s father]. A signed statement has been provided from a [witness], stating that he accompanied the tenant on the pre-tenancy inspection and filled out the report on site, with [the landlord’s father] present. The tenant says that a copy of the report was provided to the property manager who had arranged the tenancy but did not have an ongoing role in managing it.
That report notes, in relation to the garage door: “broken, existing holes, does not open close properly”
The tenant has also provided photographs showing the front of the garage which she says were taken around the time the tenancy started, which appear to show the same holes as those highlighted by the landlord in his end of tenancy evidence.
The landlord’s evidence does not persuade me, on balance, that the damage to the garage door incurred during the tenancy. That claim is dismissed. Flooring/ wallboards
The evidence provided by the landlord shows that as part of a comprehensive refurbishment of the property for sale (the landlord confirms it was sold for “top dollar”) a significant amount of money was spent replacing the flooring adjacent to the deck in the main bedroom and lounge areas, as well as in the upstairs bathroom and replacing wall boards behind the sink unit in the downstairs laundry.
The landlord made an insurance claim but it was declined on the basis that the damage was gradual damage, not covered by the policy.
The relevant parts of the ingoing inspection report read as follows: Bathroom Bath – OK sealant needs renewing Shower – old mouldy musty Hand basin/ vanity – cold tap drips pretty average Toilet – cistern falling away Bedroom 1 (main bedroom) Flooring – carpet well worn sun, water stain damage by sliding door Lounge Flooring – worn 2 stains by entrance
Photographs provided by the tenant which she says were taken in the lounge at the start of the tenancy show the carpets there then already threadbare in places, especially in front of the ranch slider doors and extensively water stained. That evidence corroborates the entry inspection records noted above.
The tenant’s evidence is that she contacted [the landlord’s father] with concerns about water leaks from the ranch sliders in the main bedroom and lounge and resulting damage to the carpets. [the landlord’s father] arranged for [the glazier] to visit. That company applied silicone to the leaks but nothing was done to deal with the existing damage. After that initial repair the tenant noticed continued leaking and again notified [the landlord’s father] who had [the glazier] visit again. They recommended replacement of the window, which [the landlord’s father] declined, and more silicone was applied.
[The witness] did not appear to be examined on his statement, which does affect the weight that can be given to it. His statement does however state that he is personally aware, from visiting the premises, that the ranch sliders leaked. He says that he was told by the tenant that the landlord had been made aware of the leaks but did not fix them. [The witness] is unable to give direct evidence about that.
As noted, a tenant is liable to compensate a landlord for damage to the premises which is intentional (there is no suggestion of that here) or which results from a careless act or omission of the tenant or a person for whom the tenant is responsible.
The evidence presented satisfies me that where there was an apparent need for repair, the tenant brought it to the landlord’s attention.
The entry inspection report and photographs from that time show evidence of significant existing water damage to the carpets in the lounge and main bedroom, with significant disintegration close to the ranch sliders. There is evidence of leaking through those doors which was brought to the then landlord’s attention. No significant maintenance work appears to have been done during the tenancy to remedy the issues highlighted when the tenancy began in 2008.
In those circumstances, I cannot be satisfied, on balance, that the damage to the flooring in the lounge and main bedroom occurred during the tenancy or if it did, from any careless act or omission on the tenant’s part. It seems more likely to me to be a consequence of continued leaking through the ranch slider doors, of which the landlord was aware, the effect of which was evident before the tenancy began.
In terms of the damage to the walls in the laundry and floor in the bathroom, the tenant has provided photographs taken at the point she vacated, of the upstairs bathroom and downstairs laundry. They appear to show those parts of the premises in reasonably clean and tidy condition and do not indicate any obvious signs of leaking that would have triggered the tenant’s obligation under s.40(1)(d), to, “...notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repair.”
There is no evidence about how or when that damage occurred. It was not obvious during the landlord’s inspection before renovations began or to the tenant while she was living there.
I note also that photographs provided by the tenant from the sales listing, show that a fundamental refurbishment was carried out. The landlord says that the laundry tub and cabinet, and repair of the gaps in the wallboards caused by its removal, would not have been necessary but for the water damage for which the tenant is responsible.
With respect, my view is that the work in the laundry to replace the laundry tub and cabinet and remediate the wall damage caused by its removal would necessarily have been done as part of the refurbishment for sale. The aged and cracked wooden laundry cabinet would have been entirely incongruous with the presentation of the rest of the property as marketed.
In terms of the damage to the floor in the upstairs bathroom, there is again no evidence that enables a cause to be identified. The damage was again not apparent until the refurbishment work began.
There is evidence of an existing issues with the shower leaking, although the tenant says the leak appeared to be into the shower box, not behind the wall.
The evidence shows significant pre-existing wear and damage to the premises when the tenancy began. It shows the absence of any regular inspection or significant maintenance during the 16 years of the tenancy. There is no evidence of any careless use of the premises during the tenancy by the tenant, such as might be provided through routine inspection reports. The evidence does not show any failure on the tenant’s part to bring to the landlord’s attention a need for repair that she was aware of.
For those reasons, I do not find it proved that the tenant is liable to compensate the landlord for the claimed repair costs. That claim is declined.
Both parties have had claims upheld an no claim is made in respect of the filing fee.

Tenancy Tribunal case 4941015 — Mould & damp

At a glance

Tenancy Tribunal case 4941015 — Mould & damp

At a glance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions