What was Tenancy Tribunal case 4965075 about?

The tribunal order states: The Bond Centre is to pay the bond of $6,400.00 (6478819-005) immediately

How much money was awarded in case 4965075?

Filing Fee: $27.00 awarded to landlord; Flooring: $2,994.60 awarded to landlord

What type of tenancy dispute was case 4965075?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4965075?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11016211-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4965075 about?

The tribunal order states: The Bond Centre is to pay the bond of $6,400.00 (6478819-005) immediately

How much money was awarded in case 4965075?

Filing Fee: $27.00 awarded to landlord; Flooring: $2,994.60 awarded to landlord

What type of tenancy dispute was case 4965075?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4965075?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11016211-Tenancy_Tribunal_Order.pdf.

11 Enterprise Street, Birkenhead, Auckland 0626 Tenancy Tribunal Case 4965075 — Property damage

Claims and awards in Tenancy Tribunal application 4965075. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Flooring	$2,994.60		Repairs: Flooring
Filing fee reimbursement	$27.00		Filing fee reimbursement

Claims and awards in Tenancy Tribunal application 4965075. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Flooring	$2,994.60		Repairs: Flooring
Filing fee reimbursement	$27.00		Filing fee reimbursement

Order

The Bond Centre is to pay the bond of $6,400.00 (6478819-005) immediately apportioned as follows: Goodwin Realty Limited As Agent For David Brook: $3,021.60 Nicola McNaughton and Geoffrey Spong: $3,378.40

Reasons

Both parties attended the hearing held on the 30 October 2024.
The landlord has applied compensation for damage to the timber flooring which it says is caused by the tenant’s dog.
The tenancy began on the 9 February 2023 and ended on the 28 March this year. The tenants lived in the property with their two children and their border collie dog Jock.
The tenants were expressly permitted to have Jock at the property. The relevant terms of the tenancy agreement that relate to this dispute are: The tenant is permitted to keep the following pet(s) on the property. If the pet is a dog, the tenants must ensure that they meet their responsibilities under Section 40 of the Residential Tenancies Act and to also observe and comply with any relevant laws such as the Dog Control Act 1996. Failure to do so may result in the breach of your Tenant Responsibilities under Section 40 of the Residential Tenancies Act. The tenants also agree to take necessary steps to ensure that the carpets are clean and free from potential infestation at the conclusion of the tenancy. Type of Pet: DOG Breed: Border Collie Name: Jock Clause 51 of the tenancy agreement was a special clause inserted regarding the floor.
Pet Clause It is in agreement that if any damage to the wooden flooring is caused by the dog, then the wooden flooring will need to be resurfaced at the tenant’s cost.
There was also a special clause regarding the flooring.
Floor Clause The tenant(s) acknowledge that some of the floors at the rented dwelling are highly polished/ wooden, and can be easily damaged and that such floors are often costly to repair. The tenant further acknowledges that dragging furniture across such floors can also do considerable damage and agree that they will take reasonable steps not to damage the floors. Furniture stoppers/pads to be installed on the feet of furniture that may cause damage to floors.
The landlord claims that Jock has scratched the timber floors. The landlord submitted a number of quotes to resurface the floor the landlord is seeking the lower amount of the quote $9982.00. 1 The landlord is also seeking two weeks rent being the amount of time needed to resurface the floor. The burden of proof.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof. 1 The range of quotes were between $9982.00 and $14,745.88.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”

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.
The tenant says that: a. The damage is not more than fair wear and tear, the landlord knew that the tenant had a border collie and accepted the risk that having a border collie at the property. b. The damage is not noticeable and that the photographs taken before and after the tenancy are not ‘like for like’ and comparable. The tenant says that he did not notice scratchings or markings. c. The landlord’s agent did four inspections of the property and that they never raised any issue with marks on the floor, which, if it was that problematic he would have expected those issues to be raised and for the landlord to mitigate his loss. The tenant says they should have been given an opportunity to rectify the damage, or if possible or mitigate the loss. d. That if I awarded the full amount claimed that the landlord would be left in a better position in respect of the condition of the floors than at the beginning of the tenancy.
The landlord says: a. That he was very happy to rent to the tenants, except for when he learned that they had a dog. This was because the landlord was concerned that the wooden floors would become scratched. The house had previously been the landlord’s family home and the landlord said that they had always been very careful about the floors ensuring that shoes were off etc. Before the tenancy agreement was signed they raised those concerns with their agent (a copy of the email supporting this was provided to the Tribunal) and it was agreed that the clause 51 and the pet bond would be taken. b. The landlord says that if the tenant had not agreed to clause 51, then they would not have rented to them. In other words, that this was an essential term in the agreement. c. Whilst the floors were 8 years, at the beginning of the tenancy they were in immaculate condition, and they should be restored to the same condition that the tenant took them in.

Are the tenants liable for the damage to the floor?

Fair wear and tear is not defined in the RTA but it has been described by the Courts and in this Tribunal as :“... that brought about by the tenant, and other persons present in or on the premises with the consent of the tenant, either unintentionally or as a normal incident of a tenant’s occupation in the course of the ‘fair’ (or ‘reasonable’) use of the premises for any of the purposes for which they were let.” Taylor v Webb [1937] 2 KB 283 (CA) at 302. Fair wear and tear is limited to reasonable use...“use” must accommodate activities that could normally be expected in premises of that type’ Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403
A tenancy agreement is a contract, the parties can agree to additional terms provided that those terms are not inconsistent with the RTA. (see s11 RTA). Any clause that is inconsistent with the provisions of the RTA is unenforceable and void. This means that any additional or special clauses agreed to by the parties in this tenancy agreement are enforceable and provided that they are not inconsistent or contrary to any provision in the RTA.
Having considered all the evidence I am satisfied that the tenants are liable for the damage to the wooden floors; I say this for the following reasons: a. I do not consider that clause 51 was inconsistent or contrary with the section of the RTA. I am satisfied that the insertion of clause 51 was an express agreement by the parties that any damage to the floor caused by Jock would NOT be considered a reasonable use or fair wear and tear of the premises. b. I accept the landlord’s evidence that they would not have rented to the tenants without this clause and the tenant’s assuming this risk. c. Both parties are astute businesspeople, and both confirmed that they had read the contract and understood the contents before signing it. This is not a situation where there was an imbalance of power when signing the contract. The tenants agreed to clause 51. They accepted the risk that if the floor was damaged then they would be liable. d. I am satisfied that it is more than likely that Jock scratched the floors causing damage, I say this because a comparison of the floor photos shows more scratches than in the before photographs. The amount awarded.
Having determined that the tenants are liable for the damage, I turn now to the quantum of the compensation.
Compensation should restore a party to the position that they would have been in had the breach not occurred. This means that the landlord should be restored to the position that they were in at the beginning of the tenancy. The landlord cannot receive compensation that would put them into a better position. In calculating depreciation, I have taken into account the age and general condition of the item when the damage occurred, and their otherwise useful life span.
The floors were 8 years old. The landlords had lived in the property with their small dog. The landlord tells me that the small dog did not scratch any surfaces and the floors were in excellent condition, which were nowhere near needing surfacing.
The photographs provided by the landlord’s agent of the property at the beginning of the tenancy and the end of the tenancy, show areas of scratches which I accept were more likely than not caused by Jock. However, I agree with the tenant’s submission that it difficult to ascertain the nature and extent of the damage from the two sets of photographs because they are taken at different distances and in different lights.
I note that the ingoing inspection report on the 8 February 2024 describes the floors as being in very good condition with a few minor scratches from wear and tear.
As the parties were unsure of how often timber floors would be resurfaced, during the hearing I conducted an internet search and discussed the results with the parties. The search suggested that timber floors would be expected to be resurfaced every 7 to 10 years. The tenants argued that this should be the lifespan attributed to the flooring, whilst the landlords argued that the floors were in such a good condition that they would not have required resurfacing for maybe up to 30 years if they were looked after properly.
Having considered the above submissions and legal principles I award the landlord’s $ 2994.60. This is 30% of the total cost of the resurfacing. This is made up by taking the age of the floor at the beginning of the tenancy, balanced with the likely life span of these floor given the condition they were at the beginning of the tenancy- I consider that at the beginning of the tenancy they were likely in better condition than most floors of 8 years I have also taken into account that the landlord has since this tenancy ended rented out the property to someone else who had a dog in the property for a short time. The landlords have been receiving the same for rent for the property over this time.
Whilst I am mindful that Jock’s scratches were not brought to the tenant’s attention during the 4 inspections that occurred during the tenancy, I have also balanced this with the tenant’s obligation to ensure that Jock did not cause damage. If the tenant had wanted to mitigate this then they could have installed a runner on the stairs or landing or have limited Jock’s access to areas that were not timber floored.
I do not award the landlord two weeks rent for the time that the landlord would be unable to tenant or live in the property whilst the floor resurfacing was undertaken. There was no evidence that convinced me that the landlord would actually realise or suffer this loss. Homeowners have floors resurfaced all the time without moving out for two weeks. The landlord has not completed the resurfacing and at the hearing said that he was ‘unsure’ if he would rent the property again given these tribunal proceedings. The filing fee
As the landlord has been partly successful, I award the landlord the filing fee.

Tenancy Tribunal case 4965075 — Property damage at 11 Enterprise Street, Birkenhead, Auckland 0626

At a glance

Tenancy Tribunal case 4965075 — Property damage at 11 Enterprise Street, Birkenhead, Auckland 0626

At a glance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Are the tenants liable for the damage to the floor?

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?

Are the tenants liable for the damage to the floor?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions