What was Tenancy Tribunal case 5050589 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 5050589?

Property Damage: $517.00 awarded to tenant

What type of tenancy dispute was case 5050589?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5050589?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11579180-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5050589 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 5050589?

Property Damage: $517.00 awarded to tenant

What type of tenancy dispute was case 5050589?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5050589?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11579180-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5050589 — Property damage

Claims and awards in Tenancy Tribunal application 5050589 — net $517.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Reimbursement damage	$517.00	Reimbursement damage
Net award	$517.00
Total payable by Landlord to Tenant	$517.00

Claims and awards in Tenancy Tribunal application 5050589 — net $517.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Reimbursement damage	$517.00	Reimbursement damage
Net award	$517.00
Total payable by Landlord to Tenant	$517.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s and landlord’s name and identifying details.
[The landlord/s] must pay [The tenant/s] $517.00 immediately, calculated as shown in table below:

Reasons

The tenant appeared. [ Redacted] appeared for the landlord.
The tenancy was for a fixed term commencing 04 August 2023 and expiring on 04 August 2024, after which it became periodic. The tenancy is current.
On 25 October 2024, the tenant filed a claim that: i. They had compensated the landlord for damage they were not responsible for, ii. That the landlord had interfered with their reasonable peace, comfort, and privacy, amounting to harassment.
The tenant seeks reimbursement of the $517.00 paid to the landlord for the damage, compensation for loss of amenity, and exemplary damages for the interference amounting to harassment.
On 04 January 2025, the tenant’s claims were set down for a video hearing on 30 January 2025.
On 15 January 2025, the landlord filed a counter claim alleging that: i. The tenant had failed to remedy a 14-day notice concerning animals at the property.
On 23 January 2025, the matters were joined and set down for an in person hearing before me on 31 January 2025.
The onus of proving these claims rests with the party making the claim. The standard required is on the balance of probabilities. In this case each party must establish more likely than not that the other party has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”). Tenant’s claims
Under section 40(2) and 49B of the Act tenants are liable for damage occurring during the tenancy that 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. Under section 41 of the Act tenants are also liable for the actions of people at the premises with their permission.
Where the damage is careless, and occurs after 27 August 2019, section 49B of the Act applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Under section 49(3)(a) 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. In this case the landlord has insurance for damage with an excess of $1,250.00 per claim. If the landlord does not have insurance to cover the damage concerned the tenant's liability is limited to four weeks' rent.
Tenants are liable for the full 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) of the Act.
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.
In addressing carelessness, the question is whether the tenant, or person at the property with their permission, exercised a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective, not based on the subjective opinions of the tenant or landlord. Reimbursement for damage
The damage concerned is to the floor in one of the bedrooms. On or about 13 June 2024, a handyperson visited the property to conduct work on the floor in the toilet and bathroom, which had been water damaged. While the handy person was underneath the house the tenant state they heard a loud noise in the bedroom nearby. The tenant went into the bedroom and noted that a set of bunk beds appeared lopsided. The tenant states that they called the handyperson, who helped move the bed. Upon doing so, they saw that one of the legs of the bed had damaged the floor beneath. The tenant states that the handyperson told them the area was soft due to dampness originating from the bathroom, suggesting that the integrity of the floor had been compromised. However, the tenant states that the handyperson returned the next day and changed their story, stating that the area was not damp, and the damage was likely due to children jumping on the bed. The landlord then advised the tenant they were responsible. The floor was repaired, and the tenant presented the invoice which they paid off at $50.00 per week. The tenant states that at the material time they were under significant stress, a close family member residing at the address was unwell.
The landlord states that the tenant’s evidence is inconsistent, that first they had stated that the handyperson was under the house when the damage occurred and then that they were in the bathroom. The landlord claims the damage shown in the photographs is not consistent with water damage had had likely been caused by the tenant’s children jumping on the bunk beds.
The handyperson was called and gave evidence over the phone. They stated that they had been to the property to repair damage under the toilet, which was “badly damaged,” and the nearby bathroom. They stated the bathroom, and the bedroom were next to each other, but that the damage in the bathroom was not near the damaged floor in the bedroom. The repairs took two days. On the second day they had been called into the house by the tenant. They had not been working underneath at the time. They state the tenant showed them an area of floor that appeared to have sunken. The bed had already been moved. Although they were reluctant, they peeled the carpet back and discovered the damaged floor. The handyperson stated that the area was not damp, and that the damage was consistent with force being applied to the bed above as opposed to the weight of the bed alone causing the damage.
The tenant stated that the bunk beds were made of metal, too heavy to move by themselves, and that the children had not played on them, adding the top bunk is too close to the ceiling. Decision
Both parties have suggested the evidence of the other is inconsistent and inaccurate. The more evidence I heard, the more confused the chronology became.
I am satisfied that the damage has occurred during the course of the tenancy. The issue is whether the damage was more than fair wear and tear and the result of a careless act on the part of the tenant or someone at the property with their permission.
I disagree with the landlord’s assessment of the general condition of the floor. The property appears to be an older property. I am satisfied that the floor in the bathroom next to the bedroom had suffered previous water damage. The handy person referred to the floor in the nearby toilet as being badly damaged, and work had also been completed on the bathroom floor. The bathroom and the bedroom are close to one another. The floor is particle board, which is known to swell and weaken when exposed to water. Having viewed the photographs, my objective assessment is that the floor in the bedroom shows signs of historic water damage which has likely resulted in an inherent weakness, which is fair wear and tear. While the foot of the bunk bed caused the damage, I am not satisfied that it was the result of a careless or intentional act on the part of the tenant. Everyday use was likely sufficient to have caused damage to what was an already compromised floor. Therefore, I am not satisfied that the tenant is liable for the damage. The $517.00 paid by the tenant should be refunded by the landlord. Cat door
During an inspection of the property, the landlord discovered the tenant was keeping a cat, which is prohibited under the agreement. The cat is a mature, neutered, housetrained male cat belonging to another family member who was traveling overseas. The landlord advised the tenant to seek permission to have a cat. The tenant made an application on 25 January 2024, and on 05 February 2024, the landlord granted permission, subject to conditions amending the agreement. The tenant was required to install a cat door, which they would be responsible for removing at the end of the tenancy, and to have the carpets professionally cleaned and treated for fleas. The tenant did not respond. On or about 10 October 2024, the landlord conducted another inspection. The cat was still present, but no cat door had been installed. The landlord issues a 14-day notice which has not been remedied.
The tenant accepts that they did not respond due to personal stress. The tenant feels that installing a cat door is expensive, costing around $250.00 - $300.00 plus costs of removing the cat door at the end of the tenancy. The tenant stated that they did not object to installing a cat door but were concerned that they did not have security of tenure.
They also argue that the cat door is unnecessary as the cat can come and go from an open window in the sunroom and spent most of its time outside.
The tenant also stated that since discovering the cat in January 2024, the landlord had continued to observe the cat at subsequent inspections and had not raised it as an issue.
The landlord denies acquiescing to the cat remaining without the conditions being met and state they only discovered the cat again during the October inspection. They state that the owner is concerned a cat climbing in and out of windows may cause damage to windowsills and walls.
The landlord does not seek termination for breach of the notice but requests an order that the tenant either accept the terms or remove the cat immediately, adding that if the Tribunal declines to vary the agreement or order removal of the cat, they will issue another 14-day notice and considering seeking termination if not remedied. Decision
Parties to an agreement may agree to vary the terms, and in circumstances, the Tribunal may with the consent of the parties vary the terms if they are prima facie contrary to the Act. While the Tribunal may remove or vary terms deemed harsh or unconscionable, it cannot unilaterally impose conditions. While I accept that the proposed terms are reasonable, it is clear the tenant does not accept them.
There are no provisions for the Tribunal to make a work order that the tenant remove the cat. Additionally, there is no evidence of actual damage caused by the cat. The tenant remains liable for any damage caused during the tenancy, including any caused by the cat. In these circumstances, the Tribunal declines to make any orders. Interference with reasonable peace comfort and privacy amounting to harassment.
The tenant claims that the landlord has interfered with their reasonable peace comfort and privacy amounting to harassment. The tenant states the interference has arisen in relation to disputes over occupancy, an allegation that they kept a dog, and surrounding property inspections. Occupancy
The tenancy agreement allows for four occupants: the tenant and three named others.
In June 2024, the tenant states they received advice from the landlord that they believed an unknown male had been staying at the property, potentially breaching the agreement by exceeding the number of occupants permitted to reside at the property.
The tenant states that early in 2024, a close family member of the tenant occupying the property was seriously unwell. The tenant states that the male concerned was a family friend who had stayed a couple of times over a fortnight to provide respite care. The tenant stated the landlord suggested they make an application to vary the agreement to allow additional occupants. Although the tenant felt this was unnecessary, as the male was not ordinarily residing at the property, they made an application, which was declined. The landlord instead offered to end the fixed term tenancy. The family member passed, and the male ceased providing respite care.
The tenant claims they were within their rights to have occasional visitors stay, which did not breach the agreement or the provisions of the Act. They state the landlord knew this but still raised the issue intending to cause the tenant anxiety and stress, which was an interference with their peace, comfort, and privacy.
The tenant states on 14 January 2025, the landlord visited the property with an arborist. During the visit they state the landlord advised the tenant that they needed to give two or three days notice of any visitors or family members staying at the property. The tenant again viewed this as an interference with their reasonable peace, comfort, and privacy.
The landlord denied that any such conversation occurred, stating that they were well aware of the tenant’s rights to have occasional visitors stay which did not require the tenant to notify or seek permission from the landlord.
The tenant stated that their teenage son had covertly recorded the exchange on the tenant’s mobile phone. The recording was played to the Tribunal. The volume was low, and the audio quality poor. In order to hear what was said by the parties, the phone had to be held close to the listener’s ear.
The Tribunal took a brief adjournment for the landlord to listen to the recording and seek an adjournment if they wished. The landlord listened to the recording and declined an adjournment.
The landlord referred to an email from the tenant on 19 June 2024, stating that the male concerned stayed a couple of nights a week to help out while the tenant was at the hospital with the unwell family member. The landlord believed the frequency of the males stay raised legitimate questions as to whether they should be added as an occupant, which the landlord was entitled to raise.
From the recording the parties appear to be calm. The tone is conciliatory and non-threatening. The parties discuss various topics including the cat door, and the landlord appears to suggest that the tenant send the landlord a quick email if someone was going to stay over.
While they acknowledged mentioning the subject, having previously denied any such conversation, the landlord submitted that the audio is unreliable and that the full exchange had not been captured. That they in fact had said if the tenant was having any one to stay for an “extended period of time to let them know.” The landlord states that they were entitled to make such a request and did not consider it an interference. Dog and gate
The tenant produced an email from the landlord dated 14 October 2024, stating that witnesses had reported a dog being kept at the property. The landlord also asked the tenant to remove a gate at the property. The tenant responded denying keeping a dog. The tenant stated that the landlord had seen the gate on multiple occasions without raising at as an issue, and explained that the gate, which was leaning against a shed at the rear of the property, had been brought from a previous tenancy and they had intended selling it.
The landlord stated that after the tenant confirmed they were not keeping a dog, they did not take the matter further. Inspections
The tenant states that after each property inspection, the landlord sent the report followed by an email providing feedback highlighting what they viewed as issues, such as failure to maintain cleanliness. The tenant has produced an email dated 13 March 2024, which provides feedback regarding cleaning. The email also states, “if the property is presented in this condition again our next steps will be to issue a 14-day notice”. Another email dated 14 October 2024, reports that some areas are not clean and tidy, but does not refer to a 14-day notice.
The tenant has produced some photographs which they state are from one inspection report, although it is unclear whether they are matched to the two emails produced.
The tenant states that the landlord was overly critical, that none of the feedback was justified and had caused stress and anxiety.
The landlord states only one inspection report had been produced, which they believed justified feedback. The landlord stated they conducted three monthly inspections, and that on each occasion the full report and any observations had been provided to the tenant. None of the other reports or emails had been provided by the tenant, and there was insufficient evidence to determine whether the feedback was unjustified. Law
Under section 38(2) of the Act, a landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.
In Smith v Floris Auckland TT 1404/93, 9 March 1994 at 6, the Tribunal stated: Quiet enjoyment means effectively the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See s 38(3) and Schedule 1A of the Act.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010).
Black’s Law Dictionary defines harassment as: “Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.”
Parties to a tenancy agreement are entitled to exercise their rights under the agreement and the Act. However, while a landlord may be entitled to exercise their rights, they may be found to have done so in manner constituting an interference with the tenant’s reasonable peace, comfort, and privacy.
Whether interference has occurred will depend on the proven facts and an objective assessment of whether the act in question exceeds what a tenant could reasonably be expected to endure under the circumstances. Decision
The onus is on the tenant to establish that the landlord’s conduct has amounted to an interference. The tenant has produced a letter from their doctor indicating that they suffer grief related anxiety issues related to the passing of a close family member. This is understandable. In my view this has likely resulted in a heightened sensitivity in matters arising out of the tenancy.
Concerning the occupancy matter, having heard from the parties and analysed the email trail between them, I am not satisfied that there has been an interference. Based on what the tenant has reported to the landlord in June 2024, the landlord formed an honest belief that the male was someone who was staying at the property regularly. The tenant then attempted to clarify what they had told the landlord. There has clearly been a miscommunication about the facts.
There is then a significant gap between July 2024 and January 2025. The issue concerning what was allegedly said during the visit revolves around reliability of the evidence. While the landlord initially denied raising the issue of occupancy, it is clear that they did. However, the audio recording is poor and not sufficiently reliable to determine exactly what was said. As stated, the parties appear to speak calmly, and the exchange appears conciliatory and non-threatening. Although I am of the view that the landlord slightly misstated the law, they do not otherwise conduct themselves in a manner amounting to an interference.
Concerning the gate, this was briefly mentioned in emails and feedback following an inspection. When the tenant advised that the were not keeping a dog and pointed out that the gate had been there for some time, the matter was not raised again. The landlord was entitled to ask the questions. I do not consider this an interference.
Determining whether the feedback emails amounted to an interference involves an objective assessment as to whether the landlord’s actions were warranted. Photographs from only one inspection report have been produced, along with two feedback emails. As stated, it is unclear whether either email relates to the inspection report. In this case, there is insufficient evidence to conclude that the feedback was unjustified. The claim is dismissed. Costs
Both parties have been partly successful. The ordering reimbursement of one party’s filing fee will effectively cancel the other. On that basis I do not make any order for reimbursement of the filing fees. Name suppression.
Both parties seek 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.
Assessed globally, I am of the opinion that both parties have been sufficiently successful in these proceedings. Accordingly, both are granted name suppression.

Tenancy Tribunal case 5050589 — Property damage

At a glance

Tenancy Tribunal case 5050589 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions