What was Tenancy Tribunal case 4964576 about?

The tribunal order states: Fabrizio Diaz Cornejo must pay [The landlord/s] $76.10 immediately, calculated

How much money was awarded in case 4964576?

Break Lease Fee: $853.10 awarded to landlord; Cleaning: $75.00 awarded to landlord; Cleaning: $75.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $400.00 awarded to landlord; Property Damage: $400.00 awarded to landlord; Wall: $201.00 awarded to landlord; Shelf Unit: $45.00 awarded to landlord

What type of tenancy dispute was case 4964576?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4964576?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10779510-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4964576 about?

The tribunal order states: Fabrizio Diaz Cornejo must pay [The landlord/s] $76.10 immediately, calculated

How much money was awarded in case 4964576?

Break Lease Fee: $853.10 awarded to landlord; Cleaning: $75.00 awarded to landlord; Cleaning: $75.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $400.00 awarded to landlord; Property Damage: $400.00 awarded to landlord; Wall: $201.00 awarded to landlord; Shelf Unit: $45.00 awarded to landlord

What type of tenancy dispute was case 4964576?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4964576?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10779510-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4964576 — Property damage

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4964576 — net $76.10 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Cleaning	$75.00	Cleaning
Carpet Cleaning	$75.00	Cleaning
Shelf unit	$45.00	Taking into account depreciation and betterment, the tenant is ordered to pay $45.00 to the landlord.
Carpet bedroom insurance excess	$400.00	Carpet bedroom insurance excess
Carpet lounge insurance excess	$400.00	Carpet lounge insurance excess
Repairs: Wall	$201.00	Repairs: Wall
Break lease fee	$853.10	Break lease fee
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$76.10
Total payable by Tenant to Landlord	$76.10

Both parties attended the hearing on 29 August 2024.

The tenant has applied for compensation for unlawful entry and breach of quiet enjoyment by the landlord. The tenant application for reduction of the fixed term tenancy was withdrawn as the tenancy has now ended.

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

The tenancy commenced on 25 November 2022 and ended on or about 9 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.

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. This issue was of relevance in relation to the tenant claim for unlawful entry by the landlord. I find that neither of the parties to this application were present when the incident complained of occurred, and neither party called as a witness, the people who were present.

In this case, both parties have submitted documentary evidence including emails, photos and videos. 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.

Prior to reviewing the evidence of the parties in relation to these claims, I wish to record that I found the parties to this hearing to be diligent and honest people. I have absolutely no doubt that all parties came to the hearing with a genuine desire to provide their evidence in a truthful manner. Tenant claims

The tenant claim for reduction in the fixed term tenancy was withdrawn as the tenancy has now ended by agreement between the parties.

The remaining tenant claims are for; • Unlawful Entry and exemplary damages. • Breach of the tenant’s quiet enjoyment.

The tenant’s evidence was that the landlord had provided a notice of the landlord’s wish to conduct an inspection of the property. There is no issue regarding the validity of the notice.

The notice provided that the landlord would attend the premises to conduct the inspection on 31 May 2024 at 11.30am. The notice confirms that whilst a time is provided, the landlord may come no more than one hour either side of the given time. I do not consider that the notice is faulty in any manner.

The tenant was not present at the premises when the inspection was to be conducted. The tenant’s partner and a friend were present. Neither of those people were called to give evidence by the tenant.

The tenant said he was told by his partner that the landlord arrived at 10.45 am.

An issue was raised by the tenant as to who actually arrived at the premises to conduct the inspection. The tenant said that it was Cindy Bonn. Cindy Bonn, who appeared at the hearing on behalf of the landlord, said that she did not conduct the inspection. She said that it was another staff member called Angela. Angela no longer works for the company. Cindy Bonn provided evidence of her whereabouts elsewhere at the time of this inspection. In this matter, I prefer the evidence of the landlord that the inspection was conducted by Angela.

The tenant says that his partner and her friend were preparing to go out and were getting dressed when the landlord arrived to conduct the inspection.

The friend answered the door and asked the landlord to wait outside until they had finished getting dressed.

After approximately one minute, the landlord knocked on the door again. The landlord said that she didn’t have to wait and pushed the door open and walked in. She commenced by asking the two people at the house who they were.

The tenant said that his partner and her friend were in various stages of undress and were very upset by the landlord’s actions.

Following on from this inspection, the tenant said that he received emails from the landlord recording that they did not consider the premises to be reasonably clean and requiring further cleaning to be carried out. The landlord said that a second reinspection would be conducted on 6 June 2024.

The tenant replied that he did not consent to the reinspection and considered it to be in breach of the RTA, but that the door would be left unlocked.

The landlord evidence was that the tenant was given notice of the proposed inspection to take place on 31 May 2024.

At approximately 10.45 am on 31 May 2024, Angela from the landlord company, knocked on the door to the premises. The door was answered by a woman who asked the landlord to wait as they were preparing to go out. Angela said in an email to the landlord company that she waited 10 minutes and then knocked on the door again. She indicated that she didn’t have time to wait further and walked in. There was no physical contact between Angela and the persons present at the premises.

The burden or job of proving the claim is on the tenant. The tenant needs to provide sufficient evidence to persuade me that it is more likely than not, that the landlord unlawfully entered the premises.

I have no direct evidence from either the tenant’s partner or her friend. Similarly, I have no direct evidence from Angela. The important point, however, is that the burden of proving this claim lies with the tenant. I place less weight on what both parties have said in evidence at the hearing, as neither of them was present at the inspection. They are simply relaying what they have been told. The claim is dismissed, as the tenant has not proven the claim to the civil standard required.

The inspection having taken place, the landlord advised the tenant in writing that they did not consider the premises to be reasonably clean and advised that they would conduct a reinspection on 6 June 2024 to see if the work required had been carried out.

The tenant considered that the reinspection was a breach of the RTA and advised the landlord that although the door would be unlocked, so that the inspection could occur, the inspection would be carried out under protest.

The landlord carried out the reinspection.

Section 48 RTA governs the law relating to landlord entry to premises. It allows a landlord to enter premises for the purpose of inspecting them at any time between 8 am and 7 pm on giving the tenant minimum of 48 hours written notice. Under s.48(2)(b) RTA a landlord may not inspect more frequently than once in a four-week period. This is the point that the tenant complains of.

The landlord says that as this was a “reinspection” and that s.48(2)(b) RTA does not apply. The landlord refers to s.48(2)(c) RTA which allows a landlord the right to inspect premises to see if the tenant has satisfactorily completed work that the landlord had required to be done.

I consider that s48(2)(c) RTA must allow a landlord to reinspect the premises for work that had been required of the tenant within the four week period referred to in s.48(2)(b) RTA. The purpose of s. 48(2)(b) RTA is to prevent a landlord from conducting regular inspections more frequently than every 4 weeks. It does allow for re-inspections of work that had been requested within that period. For this reason, the tenant claim that the landlord has unlawfully entered the premises is dismissed along with the claim for breach of the tenant’s quiet enjoyment on the same grounds. Landlord claims

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, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.

The landlord provided video evidence of the condition of the carpet at the commencement of the tenancy and at the end of the tenancy. Marks or stains are shown in the video taken at the end of the tenancy. The landlord suggested that they were food stains. The landlord arranged for carpet cleaners. The costs for the carpet cleaner was $150.00. The landlord seeks compensation for $75.00 as that was the amount required to bring the carpets up to the required reasonably clean and tidy standard. The video evidence shows that the carpet had not been left reasonably clean and tidy and the claim is proven.

Video evidence of the condition of the premises generally was provided by the landlord. The premises were in some areas, not reasonably clean and tidy. The landlord seeks compensation for $75.00 and that sum is reasonable given the condition shown in the evidence.

The shelf unit was missing at the end of the tenancy. The tenant accepts that he removed it mistakenly, which I accept. Unfortunately, when it was returned it was in a damaged condition. The cost to replace is $99.99. The unit is four years old. Taking into account depreciation and betterment, the tenant is ordered to pay $45.00 to the landlord.

The amounts ordered are proven.

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 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. The landlord is insured for tenant damage. The landlord’s policy of insurance carries an excess of $400.00 on each and every claim.

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 following damage was caused during the tenancy;

The carpet in the bedroom was damaged. There was no dispute that the damage occurred during the tenancy. The only point of dispute was what actually caused the damage. Was it hair straighteners as the landlord contends, or was it a faulty heater as suggested by the tenant?

The landlord provided evidence from her an insurance loss adjuster who said that the nature of the burn on the carpet was similar to other burns that he had seen in his experience. It is not of great significance, as I consider that whatever was the cause, it occurred during the tenancy and was likely to have been caused by the carless act of the tenant.

There was also a brown stain on the bedroom carpet which the tenant accepted had been caused accidentally by tea being spilled. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The replacement cost for the bedroom carpet is substantially greater than the excess. The excess on the claim is $400.00. The tenant is ordered to pay $400.00 to the landlord.

The landlord said that there were a number of what appeared to be cigarette burns in the carpet in the lounge that had not been present at the commencement of the tenancy. The tenant was adamant that the marks had not been caused by either himself or a guest smoking. He said that they could be marks caused by food splattering from cooking in the nearby kitchen. Once again, the precise cause is unclear. What is clear is that the damage has been carelessly caused by the tenant during the tenancy. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The excess on the claim is $400.00. The tenant is ordered to pay $400.00 to the landlord.

A wall was damaged. The landlord’s photos from the commencement of the tenancy shows that the wall was not damaged. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The landlord invoice for repairs is $402.00. The landlord seeks $201.00 so at to take betterment and depreciation into account. The tenant is ordered to pay $201.00.

The current tenants say that the curtains smell of cigarette odour. The landlord’s photos show that the curtains appear to have what looks like water or mould damage.

The landlord provided an invoice from WOW Cleaning to clean and deodorise the curtains for $172.00.

I have accepted the tenant evidence regarding his not smoking at the premises.

The evidence provided does not persuade me that the damage occurred during the tenancy and it is more than fair wear and tear. The burden of proof is on the landlord. The claim is dismissed.

The amounts ordered are proved.

I have taken into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.

This was a fixed term tenancy to end on 25 November 2024. The parties agreed to an early release of the tenant on the basis that the tenant pays the landlord’s break lease costs.

Actual itemised break lease costs can be charged by a landlord in these circumstances. The landlord provided the tenant with an itemised invoice which the landlord says is for actual costs for $853.10.The tenant had previously been provided with a preliminary estimate for the costs of $900.00.

The tenant’s evidence was that the break lease costs were simply “excessive”. No evidence was provided by the tenant to otherwise dispute the amount claimed.

The landlord has proven the claim and the tenant must pay $853.10.

As [The applicant/s] has substantially succeeded with the claim I have ordered the tenant to reimburse the filing fee.

Both parties applied for name suppression. The landlord has been substantially successful in this matter and suppression of the landlord name and details is ordered. The tenant has not been wholly or substantially successful in the hearing and the tenant application for suppression is dismissed.

Reasons

Claims and awards in Tenancy Tribunal application 4964576 — net $76.10 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Cleaning	$75.00	Cleaning
Carpet Cleaning	$75.00	Cleaning
Shelf unit	$45.00	Taking into account depreciation and betterment, the tenant is ordered to pay $45.00 to the landlord.
Carpet bedroom insurance excess	$400.00	Carpet bedroom insurance excess
Carpet lounge insurance excess	$400.00	Carpet lounge insurance excess
Repairs: Wall	$201.00	Repairs: Wall
Break lease fee	$853.10	Break lease fee
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$76.10
Total payable by Tenant to Landlord	$76.10