Published tribunal order
Tenancy Tribunal case 5057908 — Rent arrears
Decided 22 Apr 2025 · Published 22 Apr 2025 · Application 5057908
- Rent arrears
- Property damage
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
- The Bond Centre is to pay the bond of $4,800.00 ([Bond number suppressed]) to [The landlord/s] immediately.
- Stephanus Johannes Herholdt must pay [The landlord/s] $25,335.27 immediately, calculated as shown in table below.
Reasons
- Both parties attended the hearing.
- Following the end of the fixed-term tenancy, the landlord has applied for rent arrears, compensation for damage, cleaning and rubbish removal, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. The tenancy
- The tenancy commenced 17 August 2021. The last extension of the tenancy agreement was for a fixed term ending 15 October 2024.
- On 24 June 2024, the tenant emailed the landlord to request the fixed term tenancy come to an early end. The tenant said he could no longer afford the rent as he was experiencing financial difficulties.
- It is not in dispute that the landlord agreed to the fixed-term tenancy coming to an end on the condition that the tenant remained liable for rent until a new tenancy commenced, or the fixed-term tenancy expired, whichever occurred sooner. The tenant paid the landlord a fee for the cost of breaking the fixed-term tenancy which included the cost of re-advertising the premises for new tenants.
- The tenant moved out on 9 July 2024.
- A new tenancy commenced on 9 December 2024 Burden and standard of proof
- The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards.
- That includes a requirement that the party bringing the claim (the applicant, who in this case is the landlord), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fraction more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
- This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
- As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: [L]ike anyone who brings an application before a Tribunal or 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?
- No fixed-term tenancy shall be terminated unless the expiry of the term of the tenancy passes, or any of sections 55AA, 56A(1), 58(1)(d), (da), 58A, 59, 59A, or 59B apply, and notice is given in accordance with the applicable section. A fixed-term tenancy may also be ended by mutual agreement of the parties.
- It is not disputed that the tenant requested an early end to the fixed-term tenancy, and the landlord agreed, on condition that the tenant remained liable to pay rent until a new tenancy commenced, or the fixed-term tenancy ended.
- The tenant says he is liable for rent only up until 5 August 2024, being $10,800. While the tenant accepts that he agreed to continue paying rent until new tenants were found, or the fixed-term tenancy expired, he says the landlord put the property on the market for sale two weeks after he moved out, on or about 23 July 2024, and from that point did not take steps to try and secure new tenants.
- The tenant says on or about 23 July 2024 he saw a “For Sale” sign outside the property. He also says that he visited the property on 5 August 2024 and says there were builders onsite undertaking renovations. The tenant says that, because the landlord chose to sell the property, no effort was made to find new tenants.
- The tenant did not have evidence in the way of photographs of the “For Sale” sign, or a copy of any advertisement showing the property was for sale from 23 July 2024. The tenant did not take any steps himself to try and secure new tenants for the property.
- The landlord says the property was listed for rent from 27 June 2024, being 12 days before the tenant moved out on 9 July 2024. The landlord says the owner only made the decision to try and sell the property from 9 October 2024. The landlord produced a copy of the real estate listing of the property for sale which states the listing was added to the real estate website on 9 October 2024.
- The landlord says no renovation work took place after the tenant moved out, only repair work (relating to the damage the landlord claims was caused by the tenant). The landlord says there was no “For Sale” sign outside the property.
- The landlord says even when the property was listed for sale, the listing for rent remained active, and it was through that listing that tenants were eventually secured from 9 December 2024.
- The landlord has provided rent records which record that as at the end of the fixed-term tenancy, the tenant owed $22,300.00.
- It is not in dispute that the parties agreed the tenant would be liable for rent until a new tenancy commenced, or the fixed-term tenancy expired on 15 October 2024. A new tenant was not sourced, by either party, before that date therefore I am satisfied the tenant is liable to pay rent until 15 October 2024.
- An order is made accordingly.
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, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) of the RTA. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- The tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish. At the hearing, the tenant accepted he was liable to compensate the landlord for the following cleaning and rubbish removal costs: a. Flexi bin purchase and collection: $252.00; b. Labour for rubbish removal: $280.00; 1 c. Cleaning interior of house: $520.00; d. Pool cleaning: $345.00.
- By consent, I make the orders for compensation in the above amounts.
- The landlord had to replace light bulbs and smoke alarm batteries. The tenant accepted the following costs in relation to each: a. Replace 67 light bulbs and 6 heat lamps: $650.52; and b. Replacement of smoke alarm fitting including battery: $55.81;
- By consent, I make the orders for compensation in the above amounts.
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. 1 During the hearing, the landlord amended the compensation sought from $400.00 to $280.00.
- During the hearing, the tenant accepted liability for the following missing chattels and items needing repair: a. Shower drain lid replacement: $94.00; b. Cabinet door knob: $17.00; c. Bathroom door lock: $70.00; d. Shower curtain: $15.00; e. Wardrobe metal rods x 2: $45.00; f. Curtains and curtain rack replacement: $237.00; g. Exterior trim for soffit: $180.00; h. Repainting of one garage wall: $150.00; i. Removing stickers from walls and ceilings: $25.00; j. Reinstalling small cabinet above fridge: $35.00; k. Reinstalling/repairing shelves in study and game room: $15.00; l. Reinstalling doors in storage loft: $15.00; m. Repairing holes in walls: $100.00; n. Replace towel holder in separate toilet: $10.00; o. Replacing 6 missing Thuja Smaragd trees at the front of the house: $839.94. p. Replacing 25m of missing deer fence: $2,300.00; q. Replacing damaged water tank: $1,050.00; r. Replacing clothesline: $499.00;
- By consent, I make orders for compensation in the above amounts.
- The following damage, and claims for compensation, were disputed by the tenant: a. Replacing rivets on pool gate: $40.00; b. Replacing door locks on aluminium doors in the kitchen and garage: $165.00; c. Garden repair work: $2,417.70; and d. Replacement of 40 Eugenia Resilience trees: $2,799.60. Replacing rivets on pool gate
- The landlord says the pool gate did not have rivets attached at the start of the tenancy, but at some point in 2024, the Council inspected the pool area and required the landlord to attach metal rivets to the pool gate so that it could not be opened.
- The landlord says they attached the rivets as required, but at the end of the tenancy the rivets had been unscrewed, to allow the pool gate to be opened.
- The landlord produced photos to show the pool gates at the end of the tenancy, and after they had been repaired (after the tenancy). The landlord produced an invoice for the labour cost of reconnecting the metal rivets.
- The tenant denied undoing the metal rivets.
- The landlord did not produce evidence to show the metal rivets were screwed in place during the tenancy. Without such evidence, the landlord has not proved that the tenant removed the screws and/or rivets during the tenancy. The landlord has not proved the tenant caused damage.
- The claim is dismissed. Door locks on aluminium doors in the kitchen and garage
- The landlord says the locks on one door in the kitchen, and one door in the garage were damaged at the end of the tenancy.
- The landlord did not produce a photo of either door at the start of the tenancy.
- The landlord produced photos of the two doors at the end of the tenancy. Although the photos do not clearly show any damage, the landlord says the doors would not lock. The landlord says the tenant took the door in the garage off its hinges during the tenancy.
- The tenant says the door in the garage blew open during strong winds and the bracket that secured the door broke. He says he replaced the broken bracket during the tenancy, with the owner’s permission. The tenant says he was not aware the door previous locked.
- The landlord did not produce evidence of the condition of the doors at the start of the tenancy. Without such evidence, the landlord has not proved the tenant caused the alleged damage during the tenancy.
- The claim is dismissed. Garden repair work
- The garden repair work relates to three areas of alleged damage: a. A muddy area beside the pool fence where trees were previously planted which required drainage work and/or grass re-seeding; b. A larger grassed area which required drainage work and/or grass re- seeding; c. Repair of a stone wall.
- The landlord produced photos to show that, at the start of the tenancy, the muddy area beside the pool fence was not muddy and had some trees planted in it (replacement of the trees is claimed separately). The landlord produced photos to show the area was muddy at the end of the tenancy.
- The tenant says he removed the trees that were planted there with the landlord’s permission when access was required to repair the pool pump. He denies causing any deliberate damage to the area.
- The landlord also produced photos to show that, at the start of the tenancy, the larger area outside the pool fence was grassed and was not muddy. The landlord produced photos to show that at the end of the tenancy the grass was no longer covering the area and tyres marks were visible in the mud.
- The tenant says he accepts that area required grass seeding but says flooding caused issues in that part of the property.
- As regards the stone wall, the landlord produced photos to show that, at the start of the tenancy, the stone wall was intact, and photos to show that, at the end of the tenancy, one end of the stone wall had been damaged.
- The tenant says the damage was caused by a tree falling on the stone wall. He says he told the owner about the damage when it happened and that he followed the owner’s instructions to saw the fallen tree and remove it from where it landed on the wall. The tenant says he no longer has the text messages in which the owner told him to cut up the fallen tree as he has replaced his phone since then. He could not recall when the damage occurred to the stone wall.
- The landlord says the owner has not made an insurance claim on any of the claims on the basis it was all deliberate damage.
- The stone wall appears to be a sturdy wall which would require some force to damage. It is not clear how the tenant could have caused the damage by either careless or intentional actions. I find the damage to the stone wall was most likely caused by a tree falling on it.
- Given my finding that damage was not caused by the tenant’s intentional or careless actions the tenant is not liable for the cost of repairing the stone wall.
- As for the grass areas that needed drainage work and/or re-seeding, the wetness of both areas as shown in the end-of-tenancy photos suggest the damage was likely caused by a lack of drainage, rather than by any deliberate act or omission by the tenant. The landlord confirmed drainage was installed as part of the repair work. The tenant is not liable for drainage works.
- I dismiss the claim for compensation for work done to the grass areas. Replacement of 40 Eugenia Resilience trees
- The landlord says the tenant removed 40 Eugenia Resilience trees which formed two hedges: one smaller hedge by the fence near the pool pump, and a second large “L” shaped hedge outside of the pool area.
- The landlord produced photos showing the hedges in position at the start of the tenancy, and photos at the end of the tenancy showing the trees had been removed. The landlord produced evidence that the trees cost $39.99 each, being a total of $1,599.60 for 40 replacement trees, and a quote of $1,200 for the labour to plant the new plants.
- The landlord said the trees had not been replaced. The property has been re- tenanted at the same rent as the tenant paid, being $1,200 per week.
- The tenant disputes there were 40 trees. He says there were 4 planted by the pool pump, and a further 6 in the “L” shaped hedge. He says he removed the 4 trees by the pool pump with the owner’s permission to allow access to the pump for some repairs. The tenant says the owner agreed to him removing the trees, although he was unable to produce any text messages in support as the text messages are on an old phone.
- The tenant says he also removed the “L” shaped hedge with the owner’s permission, as it was necessary to install some drainage pipes. The tenant did not have any written communications to support this.
- On the landlord’s evidence, I am not satisfied the two hedges pictured were comprised of a total of 40 trees. The hedges do not appear particularly large. I also note that the tenant’s explanation that the hedges were removed to allow maintenance work to the pool pump, and drainage work in the grass area, is plausible.
- On balance, I find the landlord has not proved the tenant removed 40 trees. I dismiss this claim. Should the tenant reimburse the landlord’s application fee?
- As the landlord has substantially succeeded with the claim the tenant must reimburse the filing fee. Should the landlord’s identifying details be suppressed?
- The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name and/or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. See s 95A of the Residential Tenancies Act 1986 (RTA).
- In their application form, the landlord applied for suppression of their name and the tenancy address. As the application was substantially successful, the landlord is entitled to name suppression and I make the order accordingly.