What was Tenancy Tribunal case 4960813 about?

The tribunal order states: [The tenant/s] to pay [The landlord/s] $552.90 from the bond, calculated as

How much money was awarded in case 4960813?

Cleaning: $38.50 awarded to tenant; Compensation: Water Fixed Charge: $333.60 awarded to tenant; Property Damage: $350.00 awarded to landlord; Bench: $300.00 awarded to landlord; Wall: $275.00 awarded to landlord

What type of tenancy dispute was case 4960813?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4960813?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11024910-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4960813 about?

The tribunal order states: [The tenant/s] to pay [The landlord/s] $552.90 from the bond, calculated as

How much money was awarded in case 4960813?

Cleaning: $38.50 awarded to tenant; Compensation: Water Fixed Charge: $333.60 awarded to tenant; Property Damage: $350.00 awarded to landlord; Bench: $300.00 awarded to landlord; Wall: $275.00 awarded to landlord

What type of tenancy dispute was case 4960813?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4960813?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11024910-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4960813 — Property damage

Tenantcheck Insights

Claims and awards in Tenancy Tribunal application 4960813 — net $552.90 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Wall	$275.00		damage. The tenant has not disproven liability and the tenant is ordered to pay $275.00 for the costs of cleaning and painting.
Repairs: Bench	$300.00		and tear”. The tenant has not disproven liability.
Exemplary damages	$350.00		ages as the lower end of the scale is appropriate. The tenant is ordered to pay $350.00 in exemplary damages.
Compensation: Curtain cleaning		$38.50	at the curtains were not reasonably clean and the landlord is ordered to prepay $38.50 to the tenant. Reimbursement – carpet cleaning.
Compensation: Water fixed charge		$333.60	Water fixed charge
Total award	$925.00	$372.10
Net award	$552.90
Bond	$2,480.00
Total payable by Tenant to Landlord	$552.90

Claims and awards in Tenancy Tribunal application 4960813 — net $552.90 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.

Claim

Landlord

Tenant

Reason

Repairs: Wall

$275.00

damage. The tenant has not disproven liability and the tenant is ordered to pay $275.00 for the costs of cleaning and painting.

Repairs: Bench

$300.00

and tear”. The tenant has not disproven liability.

Exemplary damages

$350.00

ages as the lower end of the scale is appropriate. The tenant is ordered to pay $350.00 in exemplary damages.

Compensation: Curtain cleaning

$38.50

at the curtains were not reasonably clean and the landlord is ordered to prepay $38.50 to the tenant. Reimbursement – carpet cleaning.

Compensation: Water fixed charge

$333.60

Water fixed charge

Total award

$925.00

$372.10

Net award

$552.90

Bond

$2,480.00

Total payable by Tenant to Landlord

$552.90

Reasons

Both parties attended this video hearing on 22 October 2024.

Both parties were assisted by an interpreter.

The tenancy commenced on 19 June 2023 and ended on 15 July 2024.

The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).

As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the tenant must establish that what they are claiming is more likely than not. Similarly, the landlord must establish that what they are claiming is more likely than not as the landlord has filed a counter claim.

The term “balance of probabilities” means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.

As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).

The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross-examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.

In this case, both parties have submitted documentary evidence including emails, photos and statements. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered.

The tenant claims are for; o Release of the bond. o Failure to maintain- mould. o Reimbursement for curtain cleaning , carpet cleaning and overpayment of water rates. o Unlawful premises. o Reimbursement of the filing fee.

The landlord claims are for; o Compensation for damage to a wall. o Compensation for damage to a kitchen bench top. o Breaching the tenancy agreement by having more tenants than agreed to. o Reimbursement of the filing fee. Tenant Claims Failure to maintain.

Section 45 RTA provides that a landlord must provide premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.

Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (see s.45(1A) and Schedule 1A RTA).

The tenant says that on 15 July 2024 she was in the process of moving out of the premises. She moved her bed and bedside table and discovered mould on the wall . She was greatly concerned about the effect that this may have had on her health.

Upon being advised of this by the tenant, the landlord immediately arranged for the mould to be cleaned and the area painted.

A video was provided to the Tribunal of viewings of the premises prior to the commencement of this tenancy. The premises were unfurnished. No mould was apparent from the video. This would indicate that no mould was present at the commencement of the tenancy.

Where a tenant raises concern about the cleanliness or maintenance of the premises a landlord is entitled to a reasonable time to repair the problem. What will be a “reasonable time” will be case specific.

I do not find that there has been a breach, in the sense of an unreasonable delay on the landlord’s part to rectify the issue. No evidence was provided of the tenant of any causal connection between the mould and any health issues. The application is dismissed. Reimbursement – curtain cleaning

As the tenancy neared its end, the tenant said that she had cleaned nets and sofa cushions. She asked the landlord if the curtains needed to be cleaned. The landlord said that this was not required.

On 12 July 2024 the landlord was carrying out a final inspection. The landlord did not say that the curtains needed to be cleaned.

On 15 July 2024 as the tenant was preparing to leave for the airport to fly out of New Zealand the landlord said that the curtains needed to be cleaned at a laundromat. As the tenant was in a hurry, she said arrange for the curtains to be cleaned and I will pay for it. The tenant was charged $38.50 and this was paid.

The landlord said that while inspecting the premises on 15 July 2024, she noticed mould spots on the bottom of the curtains.

A tenant is required to leave premises reasonably clean and tidy. The only obligation to clean curtains would be where the curtain is not reasonably clean. No agreement entered into by a tenant to clean, where it is not required under the RTA, is unenforceable. The burden of proving that an item has not been left reasonably clean and tidy is on the landlord. I am not persuaded on the evidence provided that the curtains were not reasonably clean and the landlord is ordered to prepay $38.50 to the tenant. Reimbursement – carpet cleaning.

As mentioned above, a tenant can only be required to have carpets cleaned where the carpets have not been left reasonably clean. The terms of the RTA cannot be overridden by agreement between the parties. The tenant agreed to have the carpets cleaned. She arranged for a cleaner who had provided a quote of $220.00.

The landlord evidence was that she had tried to contact the cleaner arranged by the tenant, but had been unable to do so. She arranged for another cleaner who would clean the carpets for the same price. The tenant said that there were no stains or marks on the carpet that might have meant that it was not reasonably clean. The tenant paid $220.00 to the landlord to pay for the cleaning. The main tenant concern seemed to be whether the landlord did get the carpets cleaned. The landlord provided photos of the carpet cleaning being done.

By a very fine margin, I find that the carpets did require cleaning and the tenant application for reimbursement is dismissed. Water invoices

The tenant says that she has overpaid the landlord for water rates.

The tenant complains that her water rates invoice for $54.46 was an overpayment. She calculated that figure by averaging out the monthly payments. The landlord explained that initially every second months water rates were estimated by the water company and that every other month the amount was calculated by an actual reading. I am satisfied that the arrears of $54.46 was owing.

The tenant claims $333.60 for payment of the waste water fixed charge. Tenants are liable for usage of outgoings. Fixed charges are the responsibility of landlords. The landlord is to repay $333.60 to the tenant. Unlawful premises

The tenant claims that the premises are unlawful as no Healthy Homes statement was provided in the Tenancy Agreement. A failure to provide a Healthy Homes statement does not of itself make premises unlawful. The landlord has provided the Tribunal with a Healthy Homes certificate provided by an independent contractor and a page from the tenancy agreement including the Healthy Home statement. The claim is dismissed. Landlord claims Damage to Wall

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 occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.

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.

The landlord claims that the wall where mould was discovered, was damaged by the tenant. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The landlord says that during an inspection in December 2023 she noticed that the tenants were drying washing inside. She told the tenant that when the weather was good, they should dry clothes outside as drying inside could cause dampness and mould. The landlord says that the tenant’s inappropriate use of the house caused the mould.

The landlord is required to prove that the mould occurred during the tenancy and was more than fair wear and tear. The landlord’s pre tenancy video shows that mould was not present at the commencement of the tenancy. Mould cannot be said to be a “fair wear and tear” issue. Once that is proven, it is for the tenant to disprove liability for the damage. The tenant has not disproven liability and the tenant is ordered to pay $275.00 for the costs of cleaning and painting. Damage to Kitchen bench

The landlord provided photos of minor damage to the kitchen bench. The damage was not present at the commencement of the tenancy. The landlord claims $300.00 for repairs. The landlord said that as the kitchen bench was usually covered with kitchen utensils during inspections, she did not notice the damage during the tenancy. It was only when completing a post tenancy inspection was the damage discovered. It appeared to be water damage causing the surface to bubble.

The tenant said that she did not see any damage to the bench during the tenancy.

The damage occurred during the tenancy and is not “fair wear and tear”. The tenant has not disproven liability. The tenant is ordered to pay $300.00 to the landlord which is considered reasonable for the work required to repair the bench. Maximum number of tenants [The landlord/s] claims that the number of people living at the premises exceeds the maximum number allowed in the tenancy agreement.

Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant must ensure that the number is not exceeded. See section 40(3) RTA.

Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,000.00. See section 40(3A)(e) and Schedule 1A RTA.

The tenancy agreement specifies that the maximum number of 4 people may live in the premises during the tenancy. The landlord said that the tenant’s parents lived at the premises for approximately 4 months bring the number of tenants residing to 5.

The tenant said that the landlord was aware of the extra person residing at the premises and did not raise an objection. She would have been unable to find alternative accommodation at short notice.

The obligation under s.40(3) RTA is on the tenant to ensure that the maximum number of occupants is not exceeded. The number was exceeded. The tenant has 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) RTA.

The requirement of “intention” means an intention to carry out the act, not an intention to act unlawfully. The tenant is deemed to be aware of the terms of the tenancy agreement. The tenant intentionally allowed her parents to live at the premises in breach of her tenancy obligations. It is in the best interest of landlords and the public generally to have tenants comply with their tenancy obligations. I consider in the circumstances that an award of exemplary damages as the lower end of the scale is appropriate. The tenant is ordered to pay $350.00 in exemplary damages.

As both parties have achieved a degree of success in this matter, I make no order with regards to the filing fee.

Both parties applied for name suppression. As both parties have achieved the degree of success referred to above, the Tribunal orders suppression of the tenant and landlord names and details.

Claims and awards in Tenancy Tribunal application 4960813 — net $552.90 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Wall	$275.00		damage. The tenant has not disproven liability and the tenant is ordered to pay $275.00 for the costs of cleaning and painting.
Repairs: Bench	$300.00		and tear”. The tenant has not disproven liability.
Exemplary damages	$350.00		ages as the lower end of the scale is appropriate. The tenant is ordered to pay $350.00 in exemplary damages.
Compensation: Curtain cleaning		$38.50	at the curtains were not reasonably clean and the landlord is ordered to prepay $38.50 to the tenant. Reimbursement – carpet cleaning.
Compensation: Water fixed charge		$333.60	Water fixed charge
Total award	$925.00	$372.10
Net award	$552.90
Bond	$2,480.00
Total payable by Tenant to Landlord	$552.90