What was Tenancy Tribunal case 4970213 about?

The tribunal order states: Leti Uasi and Sione Elisi Uasi must pay Slymjek Limited $2,597.20 immediately,

How much money was awarded in case 4970213?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4970213?

The primary dispute was Rent arrears. Related themes: State of repair, Property damage, Cleanliness.

Where can I read the official tribunal order for case 4970213?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11155146-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4970213 about?

The tribunal order states: Leti Uasi and Sione Elisi Uasi must pay Slymjek Limited $2,597.20 immediately,

How much money was awarded in case 4970213?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4970213?

The primary dispute was Rent arrears. Related themes: State of repair, Property damage, Cleanliness.

Where can I read the official tribunal order for case 4970213?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11155146-Tribunal_Order.pdf.

202 Maxwell Road, Redwoodtown, Blenheim 7201 Tenancy Tribunal Case 4970213 — Rent arrears

Tenantcheck Insights

Reasons

Both parties attended the hearing. This was a continuation hearing after the first hearing on 20 September 2024 was adjourned.

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

The tenants have applied for compensation for landlord failures to maintain.

The bond has already been released to the landlord, by mutual agreement.

The tenancy ended on 15 July 2024 after tenant notice of one week prior. This was almost a four-year tenancy. A previous landlord notice to terminate lapsed by mutual agreement. At the date of the tenants leaving this was a normal periodic tenancy. Procedure

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.

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.”

When assessing whether the burden of proof has been discharged, the Tribunal considers and evaluates the information and evidence presented by both parties, and is also required to take into account the substantial merits and justice. The parties presented a large amount of information and evidence to the Tribunal regarding the claim which has been carefully considered and evaluated, but this order refers only to essential material and is not intended to be a full record of the hearings or of the information and evidence presented.

By accepting or rejecting the evidence of one person over that of another person, do not infer that I do not believe the other person’s evidence, only that the evidence of the successful person is more likely and may be supported by other evidence that makes it more likely.

While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. Landlord claims

How much is owed for rent?

The tenancy ended on 15 July 2024. The landlord provided rent records which prove the amount owing at the end of the tenancy is as ordered. The tenants only gave one week notice to quit. The landlord also sought three weeks rent in lieu-of-notice. Both are awarded.

The rent was $450.00 for most of the tenancy. The landlord increased the rent to $700.00 from 30 May 2024. This increase was accepted at that time with a text message from the tenants noting they are “happy to pay $700 wkly. All we need is to renew bathroom as is moulding up and bathtub and sink is very old and very old toilet needs renew and stove that is all I ask for my kids”.

The text above confirms the rent increase as notified formally by notice. It also tends to support the tenant position that there were failures to maintain, albeit it belatedly as they gave notice to end the tenancy some five weeks later.

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 claims the tenants did not leave the premises reasonably clean and tidy, and did not remove all rubbish.

Landlords are required to provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (see s 45(1)(a) RTA and the discussion under the Tenant claims section below). Tenants must keep the premises reasonably clean and tidy during the tenancy, and they must return them in a reasonably clean and tidy state and remove their rubbish at the end of the tenancy (ss 40(1)(c) and (e)(iii) RTA).

In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.

The RTA does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable; not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.

The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particularly painted surfaces. Generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy (Westwood v Western, DC Otahuhu, TT 2539/93 and 2540/93, 4 November 1994).

The parties had an on-site meeting on 18 July 2024. At this meeting it appears agreement was reached that the tenants would return and clean the premises. Photos were taken that day by the landlord but there is a dearth of later photos to ascertain what the final condition of the premises was. The tenants cleaned on 19 July 2024 and advised the landlord on 20 July 2024 that the cleaning was done.

The landlord photos from 18 July 2024 show many areas requiring deep cleaning. The tenants claim that at that meeting it was agreed the tenants should “fix the broken lock at the back door, clean the house & carpet”.

The tenants believe the landlord has falsified the dates on some photos submitted as evidence. A review of the landlord’s photo gallery on his phone was conducted during the hearing. The tenants demonstrated how the date and time of a photo can be easily done. While I am now better informed on such edits, the sequence of the landlord’s photos tend to mirror his prior recounting. The overall impression appears valid.

The lack of photos after any final tenant cleaning hinders both parties. Given the rising tension regarding the exit, the failure to take photos by either side was surprising. From one photo taken for kitchen repairs, accepted as being taken after 20 July 2024, the oven can be seen and it appears not to have been cleaned. The same applies to some windows. Apart from those, I have insufficient evidence to make any further awards.

Given that, I award the landlord $150.00 for the evidenced need for cleaning to a reasonable standard (I do not accept any invoices as sufficient evidence alone).

Is the tenant responsible for 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 ss 40(2)(a), 40(4) and 41 RTA).

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. The landlord advised that the insurer had insisted on the damages being a series of separate claims rather than one insured event. No insurance protection was realistically available.

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.

“Fair wear” is deterioration caused by the reasonable use of the premises. “Fair tear” is deterioration caused by the ordinary operation of the forces of nature. Importantly, intentional or careless damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.

The landlord claimed the following damage was caused during the tenancy: a. Walls. The landlord claimed $5,497.00 for repairs to damaged walls. Some photos were provided that show some holes that had been filled but not finished. Those photos also show other damage more likely to be cracking. The quality of any painting prior to the commencement of the tenancy is difficult to ascertain but based on the photos provided, the need to repair and repaint the walls is not established as tenant liability. There are no entry photos to established the condition of those areas and the tenants claim of pre-existing damage is noted (and equally not evidenced). Given the lack of evidence to establish any damage as more than fair wear and tear and that it occurred during this tenancy, this claim is dismissed. b. Carpet. The tenants accepted staining the carpet, with what appears to be hair dye. The landlord has not replaced the carpet and a late quote (below – dated 31 October 2024) was provided. The new tenancy that commenced on 8 September 2024 was at a weekly rent of $690.00 so no loss in rent has been established. Nor has any loss been incurred through replacement. The damage is proven and it was accepted by the tenants, I therefore make a modest award of $80.00 for the accelerated depreciation for the carpet. c. Kitchen benchtop and floor damage. The landlord claimed $560.00 for kitchen floor damage and $1500.00 for damage to the benchtop. Two quotes were obtained. The second was arranged by the landlord after the tenants questioned the first. The second quote noted (below): Having considered the submissions and evidence, as well as the observation above, I find the damage to both has root cause in pre-tenancy deterioration that allowed any further damage to occur through expected use of such an area. The claims are dismissed. d. Door handle and locks. The tenants accepted the back door lock required repair. The landlord completed this and the replacement cost was evidenced via an invoice for $167.20. This is awarded. I decline to make any further awards for lock or handle replacements due to insufficient evidence. e. Bedroom glass broken. The window was damaged. The tenants claim it was pre-existing damage. There are no ingoing photos to establish the entry state of the window. In the absence of that, and having considered the respective submissions, I do not find the landlord has established the damage as more than likely to be a tenant liability and the claim must be dismissed. f. Toilet pan broken. This claim was supported by a photograph. An invoice confirms the subsequent replacement. I consider the damage has arisen during the tenancy and was a result of expected use only so it is treated as fair wear and tear. The claim is dismissed. g. Laundry handle. I do not find the landlord can establish this as more than wear and tear and as such I make no award.

Given the lack of success in the above claims, betterment and depreciation have not been applied. If I am wrong with regards to the claims above, I consider such consideration would have had significant effect on any monetary orders, given the age and condition.

The amounts ordered are proved. Tenant claim

It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.

The tenants claim that the landlord failed to remedy several repair issues within a reasonable timeframe. Curiously, in the tenant application lodged after the landlord application, there is some correlation between the areas of issue raised across both applications.

The tenants sought compensation of $32,000.00. This was based on the following list of problems: •Repair holes in wall •Floor damage and repair •Cleaning walls, sanding, prep for paint •Cleaning, carpet, floors •Door handles and locks labour •Bedroom door, bedroom glass broken •Toilet pan broken plus labour •Kitchen bench burnt •Remove old kitchen, install new kitchen •Plumbing, electricity

The tenants claimed some of the damage predated this tenancy. Some other damages were said to be “creating false evidence”.

The tenants also raised landlord harassment due to messages exchanged between the parties after the tenancy ended. I do not consider they form harassment but regardless, the District Court has confirmed on appeal that exemplary damages cannot be ordered for quite enjoyment breaches from landlord after the tenancy ended, see Sibilis v Croft and Byrt [2023] NZDC 26882.

I consider the below market rent for the bulk of the tenancy reflected a meeting of minds. The landlord conducted no formal inspections although he was at the premises as times. The tenants inherited some legacy items from the previous tenancy but, again, at the time this appears to have been dealt with without any formal recourse. The tenants also incurred some costs during the tenancy that should have been with the landlord but were not raised at the time.

The tenant raised, outside of the application, that he had not been paid for work at the premises. This is noted but it is not considered an issue regarding this tenancy and any pursuit, if desired, should be via other jurisdictions.

I do not make any compensation order for the above claims of the tenant as I consider the rent comprised a built-in compensation commensurate with the condition of the premises. I do however consider the tenant text of 30 May 2024, while accepting the rent increase, reflects a number of maintenance issues that required landlord attention. The failure of the tenants to raise these in a timelier manner disadvantages their later claims.

I have been mindful of the above in the claim regarding rent in-lieu of notice. I have awarded this to the landlord as the tenants failed to give the required 28- days’ notice. I do not consider any possible prior confusion over the landlord’s earlier notice (later rescinded) excuses the failure of the tenants to give the statutory notice. I have accepted the rent increase as no challenge to that was made at the time and subsequent payments were made. I do struggle with a further three weeks rent liability at the $700.00 (in-lieu of notice) given the access to the premises during this period and landlord activities to carry out maintenance that might have been completed earlier. Given it was later relet for $690.00 the efforts of the landlord during the in-lieu period appear rewarded.

Having considered the respective submissions and evidence, I award the tenants $750.00 compensation for the land’s failure to maintain. This is calculated as three weeks of the difference between the old and new rent (being $250.00 per week). Discussion

A number of the claims in each application overlap. Each appears to seek to hold the other responsible for either damage or a failure to maintain, depending on their side.

Both parties, as applicants, have the initial evidential burden to discharge. There has been limited historical baselines or communication to apportion liability for many of the later claims.

The tenants, in particular, have made allegations of lies and/or false evidence. The vast difference in some versions of events is concerning, and suggests to me that someone is not telling the truth. I am not able to know who that might be. I do not consider the tenants claims of lying or evidence fabrication to have been substantiated. Both parties’ claims have been diminished by their inconsistencies and lack of firm evidence.

When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.

In Nixon v Geal-Otter DC North Shore TT 216/94, 6 December 1995, Judge Thorburn made the following comments on the approach that s 85 requires the Tribunal, and the District Court on appeal, to take in residential tenancy disputes: The long title to the Act includes as part of the philosophy of the Act, expeditious determination of disputes. The Tribunal and the District Court must adopt an approach which protects that philosophy. Section 85 elaborates on the philosophy, requiring jurisdiction to be applied in a manner that is most likely to ensure the fair and expeditious resolution of disputes, and injuncts that disputes should be determined in accordance with general principles of law and substantial merits and justice but not so as to be bound to give effect to strict legal forms or technicalities. There must be an approach that reflects a broad intuitive sense of propriety in the circumstances of each case and recognises the overall impression and sense of fairness and equity. The broadness of this approach imports a recognition of earthy commonsense to resolution which could be marginalised if the Tribunal and courts slavishly applied technically correct legal niceties.

Additionally, s 49 RTA requires where any party to a tenancy agreement breaches any of the provisions of the agreement or the RTA, 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.

I consider both s 49 and 85 to have some application to these applications. Both have failed to mitigate a number of issues later raised as claims after the tenancy. The limited success of both parties reflects that.

I conclude the tenants enjoyed a tenancy of reduced rent and that influenced their approach to, or acceptance of issues as they arose. The landlord had minimal involvement during the tenancy and much of the work completed after the tenancy is not evidenced as a tenant liability. Filing fee

Neither party has experienced sufficient success to merit the return of their filing fee. Each party is to carry their own cost for filing. Delay in the order

This order was delayed due to an unexpected adjudicator absence. The patience of the parties is appreciated.

Reasons

Both parties attended the hearing. This was a continuation hearing after the first hearing on 20 September 2024 was adjourned.

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

The tenants have applied for compensation for landlord failures to maintain.

The bond has already been released to the landlord, by mutual agreement.

While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. Landlord claims

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

The landlord claims the tenants did not leave the premises reasonably clean and tidy, and did not remove all rubbish.

Given that, I award the landlord $150.00 for the evidenced need for cleaning to a reasonable standard (I do not accept any invoices as sufficient evidence alone).

Is the tenant responsible for damage to the premises?

The amounts ordered are proved. Tenant claim

The tenants claimed some of the damage predated this tenancy. Some other damages were said to be “creating false evidence”.

A number of the claims in each application overlap. Each appears to seek to hold the other responsible for either damage or a failure to maintain, depending on their side.

Both parties, as applicants, have the initial evidential burden to discharge. There has been limited historical baselines or communication to apportion liability for many of the later claims.

Neither party has experienced sufficient success to merit the return of their filing fee. Each party is to carry their own cost for filing. Delay in the order

This order was delayed due to an unexpected adjudicator absence. The patience of the parties is appreciated.

Tenancy Tribunal case 4970213 — Rent arrears at 202 Maxwell Road, Redwoodtown, Blenheim 7201

Tenancy Tribunal case 4970213 — Rent arrears at 202 Maxwell Road, Redwoodtown, Blenheim 7201

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for damage to the premises?

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for damage to the premises?