What was Tenancy Tribunal case 5050028 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 5050028?

Compensation: for failure to maintai…: $2,200.00 awarded to tenant; Compensation: For Water Pump Issues: $500.00 awarded to tenant; Rent Arrears: $1,620.00 awarded to landlord; Replace Door Handle: $40.00 awarded to landlord; Rubbish Removal: $100.00 awarded to landlord

What type of tenancy dispute was case 5050028?

The primary dispute was Leaks. Related themes: State of repair.

Where can I read the official tribunal order for case 5050028?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12282114-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5050028 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 5050028?

Compensation: for failure to maintai…: $2,200.00 awarded to tenant; Compensation: For Water Pump Issues: $500.00 awarded to tenant; Rent Arrears: $1,620.00 awarded to landlord; Replace Door Handle: $40.00 awarded to landlord; Rubbish Removal: $100.00 awarded to landlord

What type of tenancy dispute was case 5050028?

The primary dispute was Leaks. Related themes: State of repair.

Where can I read the official tribunal order for case 5050028?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12282114-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5050028 — Leaks

Claims and awards in Tenancy Tribunal application 5050028 — net $940.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 17 October 2024	$1,620.00		Rent arrears to 17 October 2024
Rubbish removal	$100.00		Rubbish removal
Repairs: replace door handle	$40.00		Repairs: replace door handle
Compensation: for water pump issues		$500.00	for water pump issues
Compensation: for failure to maintain (leak		$2,200.00	for failure to maintain (leak
Total award	$1,760.00	$2,700.00
Net award		$940.00
Bond		$1,890.00
Total payable by Landlord to Tenant		$940.00

Claims and awards in Tenancy Tribunal application 5050028 — net $940.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 17 October 2024	$1,620.00		Rent arrears to 17 October 2024
Rubbish removal	$100.00		Rubbish removal
Repairs: replace door handle	$40.00		Repairs: replace door handle
Compensation: for water pump issues		$500.00	for water pump issues
Compensation: for failure to maintain (leak		$2,200.00	for failure to maintain (leak
Total award	$1,760.00	$2,700.00
Net award		$940.00
Bond		$1,890.00
Total payable by Landlord to Tenant		$940.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both the Landlord and Tenant’s names and identifying details.
The Bond Centre is to pay the bond of $1,890.00 ([Bond number suppressed]) to [The tenant/s] immediately.
The Landlord must pay the sum of $940.00 to the tenant immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing.
The landlord was represented by its directors, [Director 1] and [Director 2].
The tenant attended with her partner as a support person.
The landlord filed a claim seeking the following: a. Rent arrears for the final two and a half weeks of the tenancy (as amended at the case conference held prior to the hearing); and b. Compensation for cleaning, rubbish removal and disposal and various damage in the amount of $8,483.50 subject to an outstanding invoice for a heat pump remote.
The tenant filed a claim seeking the following: a. Refund of her bond; b. Compensation for the landlord’s breach of their obligations to provide and maintain the property in a reasonable state of repair on the basis that: i. There were problems with the water and pump system as the capacitor for the pump kept blowing which meant no water for the kitchen and bathroom; and ii. Leaks in the main bedroom and second bedroom which led to black mould and these rooms being uninhabitable and the tenant and her family having to temporarily sleep in the lounge and living areas. c. The tenant seeks compensation in the amount of $3,000 for the landlord’s breaches. She says that she had to constantly buy bottled water, use laundry services and incurred medical expenses due to adverse effects on her children’s health. She also seeks additional compensation for the stress of not having reliable access to water throughout the tenancy; d. Compensation and exemplary damages on the basis that the landlord has issued a 90-day retaliatory notice to end the tenancy. Onus and evidence
Each party bears the onus of proving their claim to the civil standard (on the balance of probabilities).
For the sake of brevity I have not referred to all of the evidence presented and discussed at the hearing in this decision but the parties should be assured that all of the evidence has been carefully considered.
The fact that the Tribunal may not find a claim proved does not necessarily mean that the party bringing the claim was wrong, it simply means that there was not enough evidence to find that claim proven. Landlord’s claim

How much is owed for rent?

The tenancy began on 15 February 2021.
The landlord says that they served the tenant with a 90-day notice on 28 August 2024 (expiring 28 November 2024) as they had to do extensive renovations to repair the roof following a roof leak. They said that the tenant then gave them 28 days’ notice on 20 September 2024 and so the tenancy ended on 17 October 2024.
The landlord produced a rent summary showing that the tenant was in arrears in the amount of $2,650 to 17 October 2024, a significant increase from the final two and a half weeks of the tenancy that the landlord as advised that they were seeking at the case conference.
The tenant produced bank records and a statement from WINZ showing that the landlord had missed recording several payments. The landlord conceded that that they missed those payments and confirmed that the amount claimed is $1,620.00, being the rent the landlord claims is owing for the last two and a half weeks of the tenancy (30 September to 17 October).
The tenant said that she discussed matters with the landlord after receiving the 90-day notice and that they told her that if she gave notice and then moved out earlier, and they were happy with the condition of the property, she would not be liable for rent until the end of the notice period and would receive her bond back.
She says that she moved out and then did extensive cleaning, rubbish removal and repairs and handed the keys back to the landlord on 7 October 2024 following a final inspection. The tenant says that the landlord did a preliminary inspection on 4 October 2024 and indicated that they were happy with the condition and that she would likely receive her bond back.
The landlord said that they discussed the issue with the tenant but gave her no absolute assurance and that ultimately they were not happy with the condition of the property. [Director 2], who attended the preliminary inspection on 4 October 2024, denied saying that he was happy with the condition of the property. Discussion
Section 512B provides that a tenant may terminate a periodic tenancy by giving at least 28 days’ notice i .
Where a landlord has first served a tenant with a 90 day notice on the basis that they need to do extensive renovations it is fairly common for landlord’s to waive rent for the entire 28 day notice period if the tenant wishes to move out earlier, so that the tenant can start a new tenancy without overlap and the landlord can then begin works earlier. However they are under no obligation to do so.
The question for the Tribunal is whether the landlord had waived their right to receive rent until the end of the notice period.
When the landlord gave 90 day’s notice to the tenant they stated: “Under your tenancy agreement you are required to give 28 days notice however we may, at our discretion and subject to the condition of the property, consider an earlier notice period should you find suitable alternative accommodations earlier”.
The tenant was adamant that she was told that the landlord would waive rent and gave notice on that basis. The landlord was equally adamant that they had not done so.
The only correspondence on this issue was a text message exchange between the landlord and the tenant where, prior to giving notice, the tenant asked “...so does that mean we are okay to let out of tenancy early? Like you stated”. The landlord replied “subject to inspection”.
The only further written correspondence on this issue appears in text messages written on 3 October 2024 just prior to the preliminary inspection, where it became clear that the parties had very different views about what had been agreed.
My interpretation of the evidence is that the landlord indicated that they might agree to waive rent subject to the final inspection but never actually agreed to do so. This was obviously a difficult situation for the tenant to be in as she had to decide whether to give notice or not. I have some sympathy for the tenant as she appears to have genuinely understood that she would not be liable for rent until the end of the notice period and moved out before the end of the notice period on that basis.
However, in the absence of a clear statement from the landlord I am not prepared to find that the landlord agreed to waive rent until the end of the notice period.
The tenant is therefore liable for rent until the end of the notice period in the amount of $1,620.00.

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 said that the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish. Cleaning
The landlord said that the rangehood extractor fan was clocked up, surfaces were tacky, there was rat droppings in a cupboard, cobwebs, and some windows were gummed up and wouldn’t open. They said that the hot water cupboard was dirty and the laundry tub hadn’t been cleaned. The landlord produced close up photos of the areas that required further cleaning.
The tenant said that the property was not clean and tidy when she moved in and that she and her mother and sister-in-law had assisted the landlord to clean the property. The tenant’s sister-in-law attended and gave evidence on this issue. She confirmed that the property had not been clean at the outset, and in particular, that the oven had not been very dirty.
The tenant said that the landlord’s photos were taken while she was in the process of moving out and that her personal possessions can be seen in the photos. She said that she took several days to clean the property after she moved out and had multiple people helping her. She produced her own photos and video taken once she had moved out. She says that she did leave the property clean and tidy.
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. 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).
Having considered all of the evidence I find that the tenant did leave the property reasonably clean and tidy overall. In my view the tenant’s photos are more likely to be a more accurate representation of the condition of the property at the end of the tenancy as she they were taken when she had completely moved out. The landlord’s photos were taken when she was still in the process of moving. I accept, having heard from the tenant and her witness, that the property required cleaning when the tenant moved in. Tenants are not required to leave a property cleaner than they find it. Rubbish
The landlord said that the tenant left rubbish behind (blankets, car tyres, car batteries, general household effects, broken toys etc) and that there were a huge number of beer bottles found outside once the section was cleared. A recycling bin was also full of rubbish.
The landlord produced photos showing a truck loaded with rubbish including wooden posts, a black filled rubbish bag, car tyre and a shopping trolley and buckets holding various empty bottles and cans. The landlord said that the bottles and cans were discovered when they cleared up the section along the bushline to construct a fence.
The tenant said that they had arranged and paid for a skip to remove all of their rubbish. She said the other rubbish belonged to the landlord and that various items were left behind by the previous tenant before she even started her tenancy. She said that the property was very overgrown along the shared driveway and that it was impossible to see any bottles/cans in there. She said that she was not responsible for these and that they could have been there from the previous tenancy and/or been placed there by people on the other side of the driveway.
The tenant accepted that she had left a recycling wheelie bin full but said that this was due to be emptied.
The landlord produced a photo from the bottom of the can that has a best before date of 15/01/2024 and said that this proved that the bottles and cans were from this tenancy.
Having reviewed all the evidence I find: a. The landlord has proved on the balance of probabilities that the tenant left behind a wheelie bin full of items that needed to be disposed of. Almost all of the items that are visible are not recyclable. b. The landlord has not proved on the balance of probabilities that the tenant left behind additional rubbish because: i. The tenant arranged their own skip bin and I am not satisfied that the items on the truck belonged to the tenant; ii. There was no evidence of the condition of the overgrown area along the boundary at the start of the tenancy. While I accept that some (not necessarily all) of the bottles/cans may have accumulated there during the tenancy they could easily have been placed there from the other side.
The tenant is responsible for the cost of disposal of the items in the recycling wheelie bin. I estimate the cost to be $100.00 and order accordingly.

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 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.
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 landlord filed an updated claim for damage prior to the hearing claiming the following damage: a. Heat pump repair - $140 b. Repair of bedroom window – $71.00; c. Light fittings repair/replacement - $799.34 d. Benchtop - $164.50 e. Various repairs as a result of damage - $474.38
The landlord also claimed for a bathroom mirror but withdrew this claim at the hearing as the mirror in the bathroom had been purchased by the tenant during the tenancy and she was entitled to take it with her at the end of tenancy.
The landlord withdrew their claim regarding the benchtop at the hearing. Heat pump and light fittings
The landlord said that the stay arms for the heat pump were broken, the remote was missing, and that there were multiple light fittings missing that all had to be replaced.
The tenant said that she had never used the heat pump as it was in an odd part of the house and there was no remote for it. She denied causing any damage. She said that multiple light fittings were missing at the start of the tenancy
The landlord did not have photos of these items at the start of the tenancy to prove that the damage occurred during the tenancy. These items are therefore not proved and are dismissed. Bedroom window
The landlord said that there was a broken window at the end of the tenancy.
The tenant said that there had been various cracked and broken windows during the tenancy and that she had all of these fixed at the end of the tenancy. She produced photos/video showing the window intact.
The landlord accepted that the tenant fixed all of the broken windows before she left the tenancy. They suggested that the bedroom window might have broken during lawnmowing.
Having heard all of the evidence on this issue I am not satisfied on the balance of probabilities that the tenant is responsible for the broken window. It appears to have broken after the tenancy.
The claim for repair of the bedroom window is dismissed. Repairs as a result of damage
The landlord listed various further minor repairs for which damage was claimed (damaged architrave, rear door lock broken, door repair, missing door handle, brass cupboard handle in kitchen etc).
The tenant accepted that a door handle was missing at the end of the tenancy. The landlord claimed $40.00 for repair which I consider reasonable. The tenant accepted this amount.
The landlord did not have photos from the start of the tenancy proving the additional damage claimed. Those claims are therefore dismissed. Tenant’s claim
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the property in a reasonable state of repair.
The tenant says that the landlord did not provide and maintain the property in a reasonable state of repair because: a. The water pump to the property didn’t work properly and had to be frequently repaired; and b. The landlord was very slow to investigate a leak in the bedroom ceiling and then did not do any internal repairs. Water pump
The tenant said that they had a water tank but the pump did not always work (beginning in November 2023) and although she notified the landlord they only did temporary fixes that didn’t solve the problem.
As a result the tenant frequently had to go outside and prime the pump and that there were periods where she had to use the laundromat, use other people’s showers and buy bottled water.
The landlord said that the water pump was brand new in 2017 and that they had the tank inspected in 2020. They said they put in a reconditioned pump, then a new pump which failed after a year, and then another pump. The landlord acknowledged that the issue had been difficult to solve, and said that they had frequently had the plumber out investigating and that ultimately the hot water cylinder was found to be the issue.
Having considered all of the evidence I accept that the landlord took active steps to solve this issue, but the tenant had to live with the ongoing inconvenience in the meantime, over a period of approximately ten months. The tenant produced extensive text correspondence regarding the pump.
The tenant was paying rent for a property that should have had continuous access to water. She is entitled to compensation for the inconvenience experienced. I consider $500 to be appropriate in all the circumstances. Leak
The tenant said that mould appeared in the ceiling above two bedrooms on one side of the property and that on 15 May 2024 a leak appeared through the ceiling in the bedroom where a flatmate living. The tenants produced photos and a video showing the leak, a text message to the landlord advising them that water was dripping through the ceiling and a sworn statement from the flatmate who then moved out.
The tenant said that it took 2 – 3 months before the landlord came to assess the condition of the roof. The landlord then issued a 90 day notice terminating the tenancy due to the severity of water damage and the need to do extensive repairs.
The tenant produced photos showing mould in the bedroom directly beneath the leak and also in another bedroom (the blue bedroom). She said that the landlord did not do any inspections during the tenancy and did not come to inspect inside following the leak.
The landlord said that when they were told about the leak they came the next day to inspect and initially thought it might be a blocked gutter. They sent photos to a roofing contractor who suggested they clear the gutter, but this didn’t solve the problem.
As the leak was continuing they had a builder come out to inspect the roof they were told that the valley had rotted out and that water was entering through the valley and into the ceiling and a major repair was required. The landlord said they then issued a 90 day notice, and once the tenant moved out they had all of the framing repaired over a period of approximately two months.
The landlord said that they were unaware that there was an ongoing issue with mould inside the bedroom where the leak had occurred, and had never been told that mould was an issue in the blue bedroom. They said that the windows has obviously not been opened in the blue bedroom and that the mould may have been due to a lack of ventilation. They said that they did not come to inspect in inside as they were mindful of the tenant’s right to quiet enjoyment of the property.
In my view, given the extensive nature of the leaking, the landlord should have come to inspect the interior of the property and should have taken steps to minimise damp/mould issues during the last 90 days of the tenancy. The tenant produced text correspondence regarding the mould as follows: a. 1 August 2024: “...so about the roof situation I need someone to come in n fix this asap it’s now created a new bulge in the ceiling which is leaking n created more black mold in the room this is a major health violation n needs to be remedied immediately” and “[t]his is not okay I pay $600 a week for this property n not to breath in black mold”. b. 5 August 2024: “[T]he front room is still continuing to grow black mould which mean[s] it must be damp above the gib in the actual ceiling, even with all this goin on I’m still paying you $600 a week that’s a lot for this house. Can we please come to some sort of an agreement to remedy this please”.
The landlord was aware, or should have been aware, that there was an issue in the bedroom below the leak from the date they were notified of the leak. The landlord discovered rot that was so extensive that the landlord has terminated the tenancy to do extensive repairs but then has not taken steps to remedy the interior issues or to reduce the rent. The result is that the tenant has been paying full rent for a property where at least one bedroom was not able to be used.
In the circumstances I consider that the tenant is entitled to compensation for loss of amenity from the date that the tenant was notified of the leak on 15 May 2024 until the end of the tenancy on 17 October 2024 in the amount of $100.00 per week, a total of $2,200.00 (22 weeks). Retaliatory Notice
The tenant says that the 90-day notice given by the landlord to end the tenancy, on the basis that the roof needed extensive repairs, was retaliatory.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
The landlord said that once they investigated the roof leak they discovered that such extensive repairs were required they had to give notice so that the repairs could be undertaken.
The landlord produced an invoice detailing extensive roof repairs at a cost of over $11,000.
Having considered all of the evidence I do not consider that the notice was retaliatory. In my view the landlord’s primary motivation in giving notice was to repair the roof. Filing fee and name suppression
Both parties have been successful in their claims to some degree. I have therefore not made orders in respect of the filing fees paid. Neither party is required to reimburse the other.
As both parties have had some success I have made orders suppressing the parties names pursuant to section 95A RTA.

Tenancy Tribunal case 5050028 — Leaks

At a glance

Tenancy Tribunal case 5050028 — Leaks

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