What was Tenancy Tribunal case 5009790 about?

The tribunal order states: This order incorporates that previously made on 26 October 2024.

How much money was awarded in case 5009790?

Cleaning: $460.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $1,924.51 awarded to landlord; Removing Stain From Vanity: $285.00 awarded to landlord

What type of tenancy dispute was case 5009790?

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

Where can I read the official tribunal order for case 5009790?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11170533-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5009790 about?

The tribunal order states: This order incorporates that previously made on 26 October 2024.

How much money was awarded in case 5009790?

Cleaning: $460.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $1,924.51 awarded to landlord; Removing Stain From Vanity: $285.00 awarded to landlord

What type of tenancy dispute was case 5009790?

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

Where can I read the official tribunal order for case 5009790?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11170533-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5009790 — Property damage

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 5009790 — net $2,696.51 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet Cleaning	$460.00	Carpet Cleaning
Removing stain from vanity	$285.00	Removing stain from vanity
Replacement carpet	$1,924.51	Replacement carpet
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,696.51
Total payable by Tenant to Landlord	$2,696.51

The initial hearing of these claims took place on 26 October 2026. The Tribunal dealt with claims for termination, damage to the bathroom vanity, carpet cleaning, and damage to a window.

The Tribunal awarded the landlord $460.00 for carpet cleaning and $285.00 to remove a stain from the bathroom vanity. The claims for damage to a window in the kitchen and termination were dismissed.

The Tribunal then adjourned the claims relating to damage to walls and the carpet.

After discussing the matter with the parties, the Tribunal allowed the tenant an opportunity to repair the damage to the walls. Once the repairs were completed the landlord was to inspect the work before painting.

The decision from 26 October 2024 is set out below from paragraphs [6] to [28]. Thereafter paragraphs [ 29] to [45] deal with the conclusion of the matter on 04 December 2024. 26 October 2024

[The property manager/s] appeared for the landlord. [The tenant/s] appeared, supported by [The tenant’s support person 1] and [The tenant’s support person 2]. The tenant has a hearing and language impairment, and the Tribunal is grateful to [The tenant’s support person 2] for her assistance.

The tenancy commenced on 28 May 2021. On 19 September 2024, the landlord filed a claim for termination of the tenancy on the grounds: i. The tenant had failed to remedy a 14-day breach notice and it would be inequitable to refuse termination (section 56(1)(c) of the Residential Tenancies Act 1986 (The “Act”), ii. The tenant had caused or permitted substantial damage to occur (section 55(1)(b) of the Act) iii. The landlord also claims that the tenant is liable for damage to walls, the carpet, the kitchen window, and the bathroom vanity.

The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Act.

Under section 56(1) of the Act the Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate.

Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant to remedy the breach, although the Tribunal may consider whether a warning should have been given when determining whether it would be inequitable to refuse to terminate.

Following a property inspection on 17 September 2024, the landlord issued the tenant a 14 day notice, requiring them to allow tradespeople to quote on repairs, remove cat excrement behind the couch, remove fly excrement from the ceiling, clean the oven , remove rubbish , and stop inserting and burning incense sticks in pin holes made in the wall.

On 01 October 2024, there was a follow up inspection. Photographs taken at the inspection have been produced. The rubbish and cat excrement have been removed. The oven cleaned. Although the incense sticks remained in the wall, they appeared to be the same ones discovered during the inspection on 17 September 2024.

The tenant states that following the inspection on 17 September 2024, they stopped using the pin holes for incense, and there is no evidence of continued use. The landlord states the fly excrement remains on the ceiling. Quotes have been provided in support of the claim for carpet cleaning and other repairs, indicating that tradespeople were able to enter and complete these assessments.

Although the tenant has failed to remove the fly excrement, this alone does not justify terminating the tenancy. No similar breach notices have been produced. I am not satisfied that it would be inequitable to refuse termination.

Under section 55(1)(b) of the Act the Tribunal must make an order terminating the tenancy if it is satisfied the tenant has caused or permitted substantial damage to the property.

Substantial damage is not defined in the Act. In the case of Morton v Barnhorn, TT189 & 302/97, DC Dunedin, 27 April 1997, the Court considered that substantial should be given its ordinary meaning and referred to the Oxford Shorter Dictionary definition: “of ample or considerable amount, quantity or dimensions”.

To succeed with a claim for damage the landlord must prove that damage 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 of the Act.

Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA). Damage to walls.

The property is a two-bedroom unit.

There are no pre tenancy photographs. The pre tenancy inspection report completed by [the property manager] shows no damage to walls. The landlord has produced photographs showing damage to the walls taken at a tenancy inspection on 17 September 2024 and 01 October 2024. The damage shown consists of pin holes , some children’s drawings on the wall , two mould patches on the ceiling, ( although it is unclear whether the tenant is responsible for this) , fly excrement on the ceiling ( not considered damage) , two scrapes on a wall , a gouge on the wall behind the couch , a scrape along the wall above the couch , and a dent behind the couch.

The damage has occurred during the tenancy and is more than fair wear and tear. Carpet

The carpet was new at the commencement of the tenancy. The photographs produced show significant stains in the bedrooms and the lounge, likely from the tenant’s children (redacted) repeatedly spilling drinks on the carpet. The tenant accepts liability for the stains. The carpet was professionally cleaned on 13 May 2022, after being found dirty but unstained. The landlord states they will attempt to remove the stains and have produced a quote for $460.00 to have the carpet professionally cleaned. I award the cleaning cost. If the stains are unable to be removed the landlord has made a claim for carpet replacement. Bathroom vanity

The bathroom vanity was replaced in August of this year. A photograph has been produced showing a faint dark thumb sized stain. The stain was removed by cleaning which cost $285.00. The tenant states that it was caused by hair dye. As the staining has occurred during the tenancy and is more than fair wear and tear, I award the compensation sought. Kitchen window

On 17 September 2024, the landlord discovered that one of the windows in the kitchen had been broken. A photograph produced shows the window has been wrapped in cling film. The landlord states that they had not been advised of the damage. The landlord states the damage is more than fair wear and tear. The landlord repaired the window at a cost of $210.98, which they are seeking to recover from the tenant.

The tenant states that the window had been nailed closed from the start of the tenancy. The tenant stated that around 09 September 2024, they had attempted to open the window for the first time but that it had cracked. They removed the glass and wrapped the window in cling film. The tenant is unable to use the phone to communicate but can text and email the landlord. The tenant accepted that they had not raised the matter during the tenancy stating that they found it difficult to explain.

There are no issues recorded with the window in the pre tenancy inspection report, although as stated there are no photographs. The onus is on the landlord to establish that the damage has occurred during the tenancy and that it is more than fair wear and tear. On the evidence, I cannot be satisfied that the tenant has either carelessly or intentionally caused the damage, and on that basis, it is fair wear and tear. Termination

The landlord is concerned that the damage, although relatively minor, has been increasing. However, with an application under section 55(1)(b) the Tribunal must assess the existing damage at the time of the hearing, and not potential future damage. There is no evidence that the tenant has threatened to cause or permit substantial damage. After viewing the photographs, I am not satisfied that the damage amounts to “substantial damage.” The claim for termination under section 55(1)(b) is declined.

The landlord has submitted a quote for $2,012.50 to repair the damage. The tenant would like the opportunity to address the damage themselves. Since the Tribunal is not terminating the tenancy, the tenant should be given the chance to remedy the issues, as they would have been under a 14-day notice. [The tenant’s support person 1] has recent experience as a painter and decorator, and [The tenant’s support person 2] advises the tenant also has other qualified whanau. The Tribunal grants the tenant an opportunity to repair the damage to the walls as per the landlords claim. Once repairs (plastering, sanding, prep etc) are complete, the tenant must notify the landlord, who will then inspect the quality of the work before painting. Repairs must be completed by 22 November 2024. 04 December 2024

[The property manager/s] appeared for the landlord. The tenant appeared and was supported by [The tenant/s support person 1].

The landlord states that the carpet was unable to be cleaned. The furniture was moved for cleaning. The photographs taken show damage more extensive than that depicted in the initial photographs. The claim to replace the carpet is $2,264.13.

Where damage is caused carelessly and covered by the landlord's insurance, the tenant's liability is limited to the insurance excess per claim. See section 49B(3)(a) of the Act.

The landlord has insurance for damage with an excess of $400.00 per event.

Tenants are liable for full 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 for whom the tenant is responsible. See section 49B (1) of the Act.

Damage is considered intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. It is also deemed 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.

Assessing carelessness, the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in similar circumstances. This is an objective test, not based on the subjective opinion of the tenant or landlord.

When awarding compensation for damage, the Tribunal must also consider 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, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful lifespan.

The landlord submits that the damage to the carpet goes beyond carelessness and falls into the category of knowingly allowing damage to occur. The tenant does not dispute this claim.

On the evidence I am satisfied that the damage goes beyond carelessness falling into a category of knowingly allowing damage to occur.

The tenant is liable for the full replacement cost, subject to betterment and depreciation.

Carpet in residential rental properties has an estimated useful lifespan of around 8 – 10 years. The carpet in this case is 4 years old. The landlord submits that a reduction of 15% for betterment would be appropriate. I accept this and award the landlord $ 1,924.51.

The landlord reports that the damage to walls were completed by [The tenant’s support person 1] to a very high standard, and no monetary claim is pursued.

All matters have now been resolved. I understand moving forward the tenant now has recourse to additional assistance around the house. Costs

As the landlord has been substantially successful, I order reimbursement of the filing fee. Name suppression.

Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.

Considering the overall outcome both parties have been sufficiently successful, and, on that basis, both are granted name suppression.

Reasons

Claims and awards in Tenancy Tribunal application 5009790 — net $2,696.51 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet Cleaning	$460.00	Carpet Cleaning
Removing stain from vanity	$285.00	Removing stain from vanity
Replacement carpet	$1,924.51	Replacement carpet
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,696.51
Total payable by Tenant to Landlord	$2,696.51