What was Tenancy Tribunal case 4963713 about?

The tribunal order states: The Bond Centre must pay the tenants $3,120.00, calculated as shown in table

How much money was awarded in case 4963713?

Cleaning: $450.00 awarded to tenant; Property Damage: $450.00 awarded to landlord

What type of tenancy dispute was case 4963713?

The primary dispute was Exemplary damages. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4963713?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10981649-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4963713 about?

The tribunal order states: The Bond Centre must pay the tenants $3,120.00, calculated as shown in table

How much money was awarded in case 4963713?

Cleaning: $450.00 awarded to tenant; Property Damage: $450.00 awarded to landlord

What type of tenancy dispute was case 4963713?

The primary dispute was Exemplary damages. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4963713?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10981649-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4963713 — Exemplary damages

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4963713. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Exemplary damages: Failure to notify tenant of	$450.00		Failure to notify tenant of
Carpet Cleaning: Break lease fee		$450.00	Carpet Cleaning: Break lease fee
Total award	$450.00	$450.00

Both parties attended the hearing.

The landlords have applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

The tenants have applied for exemplary damages, refund of the bond and reimbursement of the filing fee.

Are the tenants responsible for break lease fees?

The tenants signed up to a fixed term tenancy commencing on 8 September 2023 and ending on 9 September 2024.

The tenants gave evidence that one of the tenants was made redundant. After not being able to find alternative employment, the tenants found themselves under under significant financial distress, such that they have had to go back to living with one of the tenant’s parents or not be able to afford to eat as well as to pay rent.

The landlords say that tenants can be ordered to pay reasonable compensation for any loss or damage that has resulted from the reduction in the term of the fixed term tenancy.

The tenants are legally considered to have abandoned the fixed term tenancy before the end of the fixed term and the landlord has proven it incurred costs of $897.00 for break lease administration fees, advertising fees and credit check fees because of the fixed term lease being ended 3 months early.

The tenants are entitled to be provided with a breakdown of the reasonable break lease costs incurred by the landlord and asked for this breakdown. The landlord has only supplied an invoice it received from Ray White labelled a real estate letting fee and noting that this is charged as a flat fee based on one week’s rent plus GST. The charging of this flat cost is not provided for in the tenancy agreement.

I do not find that the tenants should be liable for undefined property management related costs on top of reasonable letting related administration and advertising costs, when the tenancy only had around 11 weeks left to run and the landlords would have incurred some reletting fees at that point such as drafting new tenancy documents, undertaking exit and entry inspections, and administering bonds.

There is no ability in the RTA for a landlord to charge a tenant with the cost of an agent to manage the full reletting of the premises process (refer to section 11 of the RTA). These are a cost of doing business that landlord cannot pass on to the tenants. Given that no evidence was provided to assist the Tribunal to ascertain the make up of the break lease fee, I dismiss the landlord’s claims for $897.00 and award compensation of $450.00 to the landlord, for the reasonable administration and advertising costs it should have incurred (roughly 50% of the amount claimed).

Are the tenants 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 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.

During the tenancy, the renovated ensuite bathroom began to show signs of a leak issue in the flooring under the ensuite bathroom tiles. The landlord did not have an entry inspection checklist or a full set of photographs of this bathroom at the start of the tenancy, nor did they have a property inspection checklist signed by the tenants, with photographs, at the three-month property inspection.

The landlord says that there were no signs of any cracked and lifting tiles, any grout lifting or gaps in the grouting in the ensuite bathroom at the start of the tenancy, nor at the three-month property inspection. They say they noticed the issue when doing the exit inspection and that the issue was so bad they can’t believe the tenants had not been aware of the issue until the date of the exit inspection. Further, the landlords say they were unable to inspect the ensuite at the 6-month property inspection, due to the tenants’ young child being asleep in that area of the house at the time of the inspection and they believe the leaks were made worse in that 5 months because the tenants did not raise the cracks and lifting tiles with them.

The tenants say the floor was uneven at the start of the tenancy and that there was a cracked tile in the ensuite since the start of the tenancy and that the insurance assessor had informed them that the leak could have been from unevenly applied adhesive when the bathroom was renovated just prior to the tenancy starting. The tenants say they asked the landlords for the first assessor’s report but never received this.

The landlords say the insurance company never provided the first assessor’s report to them and they provided the tenants with all the information they received from their insurer.

The landlords say the damage is more than fair wear and tear, and the tenants should pay the insurance excess of $400.00 because they did not inform the landlords of the obvious cracks, lifting tiles, gaps between the tiles and lifting grout. Further, they say if the tenants had raised these issues with them promptly, the damage may not have been as significant as it was. Insurance paid to redo the ensuite bathroom, as everything needed to be ripped out to repair the sodden and damaged flooring and walls.

I am not satisfied that the landlords have proven the tenants were aware of the damage and failed to notify the landlords or when the damage started, what caused the damage and whether the tenants should ought to have been reasonably aware that cracks and gaps they say were already evident at the start of the tenancy were worsening. I am also not satisfied that there was reliable entry inspection or 3-month inspection data to prove there were no issues with the floor when the tenancy started or at the 3-month point.

The tenants have provided a plausible defence to their liability for the damage, in that they say the insurance assessor told them the issue may have been caused by uneven adhesive at the time of the renovation and the resulting damage happening slowly over time to the extent that the gradual changes were not so noticeable to the tenants as they were to the landlord coming in to look at the floor at the exit inspection.

I dismiss the landlords claim for lack of evidence to prove, on balance, that it was the tenants’ careless acts or omissions that led to the cost of the damage incurred by the landlords. Did the landlords fail to meet obligations to provide insurance policy or to correct information provided?

The tenants say the landlords did not inform them that the landlords had changed insurers after the tenancy agreement had been signed by the parties and that the new policy had an excess of $1,250.00 instead of the $400.00 excess in the prior policy.

A dispute arose at the end of the tenancy about the flooding damage in the ensuite bathroom, and the landlords sought $1,250.00 insurance excess be deducted from the tenants’ bond.

The tenants raised their concerns about the increased insurance excess and that was the first they knew of the change in insurer, policy and excess.

Section 45(2B) and (2C) of the RTA confirm: (2B) The landlord of premises that are insured may at any time and must within a reasonable time after receiving a request from the tenant for a copy of the insurance policy, provide to the tenant under a tenancy agreement a copy of each insurance policy that is relevant to the tenant’s liability for destruction of, or damage to, the premises. (2C)If anything changes so that the insurance information that was provided in accordance with subsection (2B) or this subsection is no longer correct, the landlord must, within a reasonable time after the landlord becomes aware of the change: (a) provide the tenant with a copy of the correct information; or (b) if the premises are no longer insured, provide the tenant with a statement that they are not insured.

Section 45(2D) confirms that a landlord’s failure to comply with subsection (2B) or (2C) is declared to be an unlawful act.

The landlord says they provided a copy of the new insurance policy to Ray White and that they were not aware they had to provide this information to the tenants as well.

I find it would be just to require the landlord to pay exemplary damages because: a. The landlords did not engage Ray White as a property management company, they managed the property themselves. They should have been reasonably aware of all their s45 landlord obligations and ignorance of the law is not a defence to breaching it; b. The tenants are entitled to receive updated insurance information in order to be able to assess and manage their tenancy related risks, and this was more necessary given the landlord later relied on the new policy and excess to pursue the tenants for $1,250.00 (nearly 210% increase in the insurance excess listed in the tenancy agreement) and only later resiled from this demand once the breach was pointed out to them by the tenants; c. It is in the interests of the tenants to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations provide tenants with updated insurance information in a reasonable timeframe.

Given the serious risks to the tenants of the landlord’s failure to provide them this information in a timely manner, I find it appropriate to award the tenants 50 percent of the $900.00 maximum amount of exemplary damages available for a s45(2D) of the RTA breach, being $450.00.

The tenants also made claims for a s30 of the RTA breach for the landlords’ failure to keep business records and claims for the landlord requesting unlawful payments under ss17,17A,18 and 18A of the RTA. These claims all related to the s45(2C) of the RTA breach and none of these other claims have been proven. As such, these additional claims have been dismissed for lack of evidence to prove them on balance. Reimbursement of filing fee

Because both parties substantially succeeded with their claims, I have reimbursed both parties filing fees. As one party’s application fees is countered by the other’s, no file fees have been reimbursed. Name Suppression

The tenants and landlords applied for non-publication of their names and identifying details.

The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

Both parties have substantially succeeded in these proceedings, and I do not consider publication is in the public interest or justified because of either of the party’s conduct or any other circumstances of the case.

Non-publication of both parties’ names is ordered.

Reasons

Claims and awards in Tenancy Tribunal application 4963713. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Exemplary damages: Failure to notify tenant of	$450.00		Failure to notify tenant of
Carpet Cleaning: Break lease fee		$450.00	Carpet Cleaning: Break lease fee
Total award	$450.00	$450.00

Both parties attended the hearing.

The landlords have applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

The tenants have applied for exemplary damages, refund of the bond and reimbursement of the filing fee.

Are the tenants responsible for break lease fees?

The tenants signed up to a fixed term tenancy commencing on 8 September 2023 and ending on 9 September 2024.

The landlords say that tenants can be ordered to pay reasonable compensation for any loss or damage that has resulted from the reduction in the term of the fixed term tenancy.

Are the tenants responsible for the damage to the premises?

The landlords say the insurance company never provided the first assessor’s report to them and they provided the tenants with all the information they received from their insurer.

A dispute arose at the end of the tenancy about the flooding damage in the ensuite bathroom, and the landlords sought $1,250.00 insurance excess be deducted from the tenants’ bond.

The tenants raised their concerns about the increased insurance excess and that was the first they knew of the change in insurer, policy and excess.

Section 45(2D) confirms that a landlord’s failure to comply with subsection (2B) or (2C) is declared to be an unlawful act.

The landlord says they provided a copy of the new insurance policy to Ray White and that they were not aware they had to provide this information to the tenants as well.

The tenants and landlords applied for non-publication of their names and identifying details.

Non-publication of both parties’ names is ordered.

Tenancy Tribunal case 4963713 — Exemplary damages

At a glance

Tenancy Tribunal case 4963713 — Exemplary damages

At a glance

Claims & awards

Order

Reasons

Are the tenants responsible for break lease fees?

Are the tenants responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Are the tenants responsible for break lease fees?

Are the tenants responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions