What was Tenancy Tribunal case 5015909 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5015909?

Rent Arrears: $630.00 awarded to landlord; Basement Wall: $322.00 awarded to landlord

What type of tenancy dispute was case 5015909?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 5015909?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11182306-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5015909 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5015909?

Rent Arrears: $630.00 awarded to landlord; Basement Wall: $322.00 awarded to landlord

What type of tenancy dispute was case 5015909?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 5015909?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11182306-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5015909 — Rent arrears

Claims and awards in Tenancy Tribunal application 5015909 — net $2,793.75 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 16/9/24	$630.00	Rent arrears to 16/9/24
Repairs: basement wall	$322.00	Repairs: basement wall
Net award	$2,793.75
Total payable by Tenant to Landlord	$2,793.75

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
[The tenant/s] must pay [The landlord/s] $2,793.75 immediately from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,520.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $2,520.00 [The tenant/s]: $0.00
All other claims are dismissed.

Reasons

Both parties attended the hearing. Ms Hong represented the landlord and Mr Lee and Mr Reed represented the tenant.
The tenant has applied for their bond to be refunded to them. The landlord has cross applied for rent arrears and compensation for having to repaint, fill a new garden with soil, erect a basement retaining wall, repair the basement wall and reinstate the fireplace over.
The parties had a tenancy agreement between them relating to this premise. It allowed the tenant, [The applicant/s] to sublet the premise which they did as social housing.
The tenancy ended on 25 July by landlord notice. Subsequent testing on the property confirmed it was contaminated with methamphetamine. The tenant then spent some time having it decontaminated. The landlord was advised the property was decontaminated on 10 September and was told they could have the property back after a further week. The parties met to return the keys on September 18 and the landlord accepted the keys several days later.
Before I discuss the claims, it is worth noting the burden of proof in these proceedings. 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. If an applicant is not able to prove their case, it must be dismissed.
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: “...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.”

How much is owed for rent?

The landlord contends the tenants should pay rent until the keys were accepted on 23 September.
The tenant says they paid rent whilst the property was being decontaminated which was well after the tenancy ended. They ceased paying rent when the last of the decontamination was completed although accept there were still some other works to be done. They say the landlord had access to the property throughout the process as there was a lock box on the premise which contained the keys.
Rent is only payable whilst a tenancy is in place. See the definition of tenancy in section 2:
This tenancy formally ended on 25 July however the tenants remained in possession of the premise. In this situation I consider the parties agreed to an amendment to the tenancy to allow the tenants continued occupation in order that they attend to the decontamination and remediation. This was not a documented agreement because the communication between the parties was minimal, however was formed by the tenants continuing to pay rent and access the house, and the landlord accepting this arrangement on the understanding the house would be returned when the decontamination was complete.
As the tenants were still undertaking significant works for the week after they notified of the decontamination (laying carpet and replacing curtains), I find it reasonable they pay rent for that week as this period was effectively an extension of their agreement. They did however try to then return the keys to the landlord, and I find it reasonable they not be liable for rent after that week as they were no longer in exclusive occupation.
Accordingly, I direct that the tenants pay one further week’s rent.

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

The landlord alleges the tenant did not leave the premises as they found it. In particular there was no soil and grass in the garden that had been reinstated and the fireplace cover was not affixed.
At the end of a 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 (RTA).
The claim for re-grassing the garden relates to a section of the garden that the tenant’s sub-tenant had removed. The landlord had reinstated the area at the tenants’ cost. A quote provided by the landlord was approved by the tenant for the work. The quote did not include refilling the space with dirt and grass however the tenant thought the quote covered the entirety of the work. They say they paid to improve the area and should not be liable for a cost they had not agreed to.
The landlord has not provided photos of the area prior to the tenancy. The photos taken after the rebuilding of the area show it has been professionally completed.
Having considered the situation carefully I do not find the tenants liable for the cost of resewing the garden. There is no evidence of the state of the area prior to the tenancy therefore I cannot find it has been damaged or left in a worse state than it was provided. Further, the tenants agreed to a cost to rectify the issue and were not advised there would be other costs. It is not reasonable to add further costs on after agreement is reached.
Accordingly, I dismiss the claim for compensation to fill the new section of garden with grass and re-sew the grass seed.
I also do not find the claim regarding the fireplace cover established. There is no evidence that it was affixed at the commencement of the tenancy. It was still present at the end of the tenancy. Accordingly, this claim is also dismissed.

Is the tenant responsible for the damage to the premises?

Basement wall

The landlord’s submission is that the tenant’s sub-tenant damaged the wall of the basement and dug out some of the sub-floor. The basement was not included in the tenancy however both parties were aware during the tenancy that the sub- tenant was utilising the space.
The tenant is liable for damage caused by their sub-tenants. 1 This includes in the basement because although it was not a part of the tenancy, it was a part of the house the sub-tenant had an exclusive right to occupy. The tenant knew their sub-tenant was using the space when they should not have been.
In order to be successful in such a claim for damage, 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. See sections 40(2)(a), 41 and 49B RTA.
The landlord has established in photographic evidence that the wall was in reasonable condition at the commencement of the tenancy but had large holes in it at the end. I find it more likely than not that it was the sub-tenant who caused this damage.
The cost to repair was $322. The tenant argues that the original wall was in poor condition and therefore the repairs were done to the betterment of the landlord.
The principles of betterment and depreciation must be considered when awarding compensation. 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.
The landlord originally had a wall in a poor state of repair, they now have an unfinished wall that has two panels of plywood in it. I do not consider they are 1 See section 41 of the RTA better off as it is a basic patch job that has been undertaken. Accordingly, I award the amount sought. Basement retaining wall
The landlord has not been able to establish in evidence in what state the underfloor was prior to the tenancy. I also do not consider they have proven that the sub-floor was dug out by the sub-tenant. Accordingly, as this claim has not been established in evidence it is dismissed. Painting
The landlord claims reimbursement of the cost of repainting the interior of the home. Ms Hong submits that the work was required for the following reasons: a. The paint was damaged by the tenant’s decontamination process. b. It is the usual process of a decontamination to repaint a property.
The tenants say their decontamination contractor was thorough and undertook all the work required to decontaminated and remediate the property. Areas were painted as required and no further painting was necessary.
The landlord has not established in evidence that the paintwork was damaged. They cannot rely on a ‘usual’ process of decontamination to establish damage. This process was managed by a decontamination/remediation company and no evidence has been provided that they did not complete the process to a satisfactory standard.
Accordingly, as the damage has not been established in evidence, the claim is dismissed. Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. Both parties seek suppression and as both were successful to an extent in their positions, I approve both applications.

Claims and awards in Tenancy Tribunal application 5015909 — net $2,793.75 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 16/9/24	$630.00	Rent arrears to 16/9/24
Repairs: basement wall	$322.00	Repairs: basement wall
Net award	$2,793.75
Total payable by Tenant to Landlord	$2,793.75

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
[The tenant/s] must pay [The landlord/s] $2,793.75 immediately from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,520.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $2,520.00 [The tenant/s]: $0.00
All other claims are dismissed.

Reasons

Both parties attended the hearing. Ms Hong represented the landlord and Mr Lee and Mr Reed represented the tenant.
The tenant has applied for their bond to be refunded to them. The landlord has cross applied for rent arrears and compensation for having to repaint, fill a new garden with soil, erect a basement retaining wall, repair the basement wall and reinstate the fireplace over.
The parties had a tenancy agreement between them relating to this premise. It allowed the tenant, [The applicant/s] to sublet the premise which they did as social housing.
The tenancy ended on 25 July by landlord notice. Subsequent testing on the property confirmed it was contaminated with methamphetamine. The tenant then spent some time having it decontaminated. The landlord was advised the property was decontaminated on 10 September and was told they could have the property back after a further week. The parties met to return the keys on September 18 and the landlord accepted the keys several days later.
Before I discuss the claims, it is worth noting the burden of proof in these proceedings. 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. If an applicant is not able to prove their case, it must be dismissed.
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: “...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.”

How much is owed for rent?

The landlord contends the tenants should pay rent until the keys were accepted on 23 September.
The tenant says they paid rent whilst the property was being decontaminated which was well after the tenancy ended. They ceased paying rent when the last of the decontamination was completed although accept there were still some other works to be done. They say the landlord had access to the property throughout the process as there was a lock box on the premise which contained the keys.
Rent is only payable whilst a tenancy is in place. See the definition of tenancy in section 2:
This tenancy formally ended on 25 July however the tenants remained in possession of the premise. In this situation I consider the parties agreed to an amendment to the tenancy to allow the tenants continued occupation in order that they attend to the decontamination and remediation. This was not a documented agreement because the communication between the parties was minimal, however was formed by the tenants continuing to pay rent and access the house, and the landlord accepting this arrangement on the understanding the house would be returned when the decontamination was complete.
As the tenants were still undertaking significant works for the week after they notified of the decontamination (laying carpet and replacing curtains), I find it reasonable they pay rent for that week as this period was effectively an extension of their agreement. They did however try to then return the keys to the landlord, and I find it reasonable they not be liable for rent after that week as they were no longer in exclusive occupation.
Accordingly, I direct that the tenants pay one further week’s rent.

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

The landlord alleges the tenant did not leave the premises as they found it. In particular there was no soil and grass in the garden that had been reinstated and the fireplace cover was not affixed.
At the end of a 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 (RTA).
The claim for re-grassing the garden relates to a section of the garden that the tenant’s sub-tenant had removed. The landlord had reinstated the area at the tenants’ cost. A quote provided by the landlord was approved by the tenant for the work. The quote did not include refilling the space with dirt and grass however the tenant thought the quote covered the entirety of the work. They say they paid to improve the area and should not be liable for a cost they had not agreed to.
The landlord has not provided photos of the area prior to the tenancy. The photos taken after the rebuilding of the area show it has been professionally completed.
Having considered the situation carefully I do not find the tenants liable for the cost of resewing the garden. There is no evidence of the state of the area prior to the tenancy therefore I cannot find it has been damaged or left in a worse state than it was provided. Further, the tenants agreed to a cost to rectify the issue and were not advised there would be other costs. It is not reasonable to add further costs on after agreement is reached.
Accordingly, I dismiss the claim for compensation to fill the new section of garden with grass and re-sew the grass seed.
I also do not find the claim regarding the fireplace cover established. There is no evidence that it was affixed at the commencement of the tenancy. It was still present at the end of the tenancy. Accordingly, this claim is also dismissed.

Is the tenant responsible for the damage to the premises?

Basement wall

The landlord’s submission is that the tenant’s sub-tenant damaged the wall of the basement and dug out some of the sub-floor. The basement was not included in the tenancy however both parties were aware during the tenancy that the sub- tenant was utilising the space.
The tenant is liable for damage caused by their sub-tenants. 1 This includes in the basement because although it was not a part of the tenancy, it was a part of the house the sub-tenant had an exclusive right to occupy. The tenant knew their sub-tenant was using the space when they should not have been.
In order to be successful in such a claim for damage, 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. See sections 40(2)(a), 41 and 49B RTA.
The landlord has established in photographic evidence that the wall was in reasonable condition at the commencement of the tenancy but had large holes in it at the end. I find it more likely than not that it was the sub-tenant who caused this damage.
The cost to repair was $322. The tenant argues that the original wall was in poor condition and therefore the repairs were done to the betterment of the landlord.
The principles of betterment and depreciation must be considered when awarding compensation. 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.
The landlord originally had a wall in a poor state of repair, they now have an unfinished wall that has two panels of plywood in it. I do not consider they are 1 See section 41 of the RTA better off as it is a basic patch job that has been undertaken. Accordingly, I award the amount sought. Basement retaining wall
The landlord has not been able to establish in evidence in what state the underfloor was prior to the tenancy. I also do not consider they have proven that the sub-floor was dug out by the sub-tenant. Accordingly, as this claim has not been established in evidence it is dismissed. Painting
The landlord claims reimbursement of the cost of repainting the interior of the home. Ms Hong submits that the work was required for the following reasons: a. The paint was damaged by the tenant’s decontamination process. b. It is the usual process of a decontamination to repaint a property.
The tenants say their decontamination contractor was thorough and undertook all the work required to decontaminated and remediate the property. Areas were painted as required and no further painting was necessary.
The landlord has not established in evidence that the paintwork was damaged. They cannot rely on a ‘usual’ process of decontamination to establish damage. This process was managed by a decontamination/remediation company and no evidence has been provided that they did not complete the process to a satisfactory standard.
Accordingly, as the damage has not been established in evidence, the claim is dismissed. Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. Both parties seek suppression and as both were successful to an extent in their positions, I approve both applications.

Tenancy Tribunal case 5015909 — Rent arrears

At a glance

Tenancy Tribunal case 5015909 — Rent arrears

At a glance

Award balance

Claims & awards

Dismissed claims

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 the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

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 the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions