What was Tenancy Tribunal case 5064448 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 5064448?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5064448?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5064448?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11626622-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5064448 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 5064448?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5064448?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5064448?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11626622-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5064448 — Property damage

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord and Tenant names and identifying details.
The application is dismissed.
The Bond Centre is to pay the bond of $597.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

The landlord’s representative and both tenants attended the hearing which was held by video conference.
This application has come about because the parties disagree about what is reasonable after the granite benchtop in the kitchen of the premises was marked during the tenancy.
What is agreed is that the tenants placed a plant pot on the bench during their tenancy. The pot had herbs growing in it.
The landlord has supplied photographs taken at the end of the tenancy showing a clearly visible square shaped mark, the size of the base of the pot, that he says is “etched” into the benchtop.
The tenants say the landlord’s photographs do not accurately depict the mark. They say there is more like “a shadow” on the stone benchtop. The tenants have supplied their own photographs which they say they went back and took after the tenancy had ended and once this dispute arose.
The landlord seeks $570.00 and the filing fee of $27.00 to cover the lower of two quoted costs for a professional to remove the mark on the bench. The work had not yet been done at the date of the hearing.

What is the law on liability for damage during a tenancy?

Sections 49A and 49B of the Residential Tenancies Act 1986 (RTA) contain the law on responsibility for damage to tenancy premises.
A landlord must first prove that any 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.
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. If the property is not insured against that damage, the limit is four weeks’ rent. See section 49B(3)(a)(b) RTA.

Is there damage and, if so, is it careless?

The landlord’s and tenants’ photos of the mark on the bench are different. I cannot explain this. Perhaps the mark is more visible in certain light or from a certain angle.
I cannot go to the premises to see the mark for myself. All I have are the photographs.
My decision is that the landlord has proved the bench is “damaged”, in the sense that the bench is different now than it was at the start of the tenancy. The photos supplied by the landlord are taken from two different angles and the mark is similar in both.
The tenants say that any mark that is on the bench is fair wear and tear because it came about from a normal use of a kitchen bench which includes putting a herb pot on it. This is also their reason for saying that they were not careless so they cannot be liable.
Neither “fair wear and tear” or “careless” are defined in the RTA. The former can be thought of as what happens from normal use and natural deterioration and the latter meaning a lack of care or forethought.
Based on this, the mark from the pot is more than fair wear and tear – but is it careless?
The standard of care expected is that of an ordinary careful person who is not expected to take precautions against every foreseeable risk but only against those risks that are reasonably likely to happen.
I agree that it is a normal residential and domestic activity to have some plants inside in pots.
If a plant pot is on the carpet, it is reasonable to expect a tenant to protect the carpet from dirt and water (when the plant is watered).
In this case, the pot was on a stone bench. There are no special directions either in the tenancy agreement or that were otherwise given to the tenants about the care of the bench.
The tenants said they had found the plant pot outside at the property when they first moved in. The pot appears to be made of pottery or other clay substance. It has a saucer for catching water.
An assessment of whether it was careless to put a pottery plant pot found outside on a stone bench without a protective mat underneath it is subjective. The answer is not clear either way.
It is probable that neither the landlord nor the tenants foresaw this as a possible risk. I say this because one of the photographs provided by the landlord was taken during a routine inspection and shows the pot on the bench. If the landlord had thought that was a careless thing to do, presumably the property manager would have mentioned it to the tenants at that time.
For this reason, my decision is that the damage is not careless. This means the tenants are not liable.
The landlord’s claim is dismissed.
For completeness, I note that even if I had decided that it was careless to keep this pot on the stone bench, any assessment of compensation must also be based on reasonableness. The difference between the photographs of the landlord and tenants suggests that the mark is relatively faint. Put bluntly, it needs to be asked whether it is worth the cost to repair when there is no impact on the use of the bench and more minor damage may happen to the bench while the property is tenanted.
Also, although quotes can be accepted at times where repair work has not in fact been done at the time of a hearing (which in this case was more than 5 months after the tenancy had ended), it is relevant for the Tribunal to ask whether the cost will actually be incurred. There is no loss until a cost has been incurred or a loss of value can be quantified.
The landlord has not succeeded with the claim so is not entitled to the filling fee. The tenants have succeeded so are entitled to suppression of their names from the published order. I also suppress the landlord’s name on this occasion as am satisfied the application was made in good faith.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord and Tenant names and identifying details.
The application is dismissed.
The Bond Centre is to pay the bond of $597.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

The landlord’s representative and both tenants attended the hearing which was held by video conference.
This application has come about because the parties disagree about what is reasonable after the granite benchtop in the kitchen of the premises was marked during the tenancy.
What is agreed is that the tenants placed a plant pot on the bench during their tenancy. The pot had herbs growing in it.
The landlord has supplied photographs taken at the end of the tenancy showing a clearly visible square shaped mark, the size of the base of the pot, that he says is “etched” into the benchtop.
The tenants say the landlord’s photographs do not accurately depict the mark. They say there is more like “a shadow” on the stone benchtop. The tenants have supplied their own photographs which they say they went back and took after the tenancy had ended and once this dispute arose.
The landlord seeks $570.00 and the filing fee of $27.00 to cover the lower of two quoted costs for a professional to remove the mark on the bench. The work had not yet been done at the date of the hearing.

What is the law on liability for damage during a tenancy?

Sections 49A and 49B of the Residential Tenancies Act 1986 (RTA) contain the law on responsibility for damage to tenancy premises.
A landlord must first prove that any 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.
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. If the property is not insured against that damage, the limit is four weeks’ rent. See section 49B(3)(a)(b) RTA.

Is there damage and, if so, is it careless?

The landlord’s and tenants’ photos of the mark on the bench are different. I cannot explain this. Perhaps the mark is more visible in certain light or from a certain angle.
I cannot go to the premises to see the mark for myself. All I have are the photographs.
My decision is that the landlord has proved the bench is “damaged”, in the sense that the bench is different now than it was at the start of the tenancy. The photos supplied by the landlord are taken from two different angles and the mark is similar in both.
The tenants say that any mark that is on the bench is fair wear and tear because it came about from a normal use of a kitchen bench which includes putting a herb pot on it. This is also their reason for saying that they were not careless so they cannot be liable.
Neither “fair wear and tear” or “careless” are defined in the RTA. The former can be thought of as what happens from normal use and natural deterioration and the latter meaning a lack of care or forethought.
Based on this, the mark from the pot is more than fair wear and tear – but is it careless?
The standard of care expected is that of an ordinary careful person who is not expected to take precautions against every foreseeable risk but only against those risks that are reasonably likely to happen.
I agree that it is a normal residential and domestic activity to have some plants inside in pots.
If a plant pot is on the carpet, it is reasonable to expect a tenant to protect the carpet from dirt and water (when the plant is watered).
In this case, the pot was on a stone bench. There are no special directions either in the tenancy agreement or that were otherwise given to the tenants about the care of the bench.
The tenants said they had found the plant pot outside at the property when they first moved in. The pot appears to be made of pottery or other clay substance. It has a saucer for catching water.
An assessment of whether it was careless to put a pottery plant pot found outside on a stone bench without a protective mat underneath it is subjective. The answer is not clear either way.
It is probable that neither the landlord nor the tenants foresaw this as a possible risk. I say this because one of the photographs provided by the landlord was taken during a routine inspection and shows the pot on the bench. If the landlord had thought that was a careless thing to do, presumably the property manager would have mentioned it to the tenants at that time.
For this reason, my decision is that the damage is not careless. This means the tenants are not liable.
The landlord’s claim is dismissed.
For completeness, I note that even if I had decided that it was careless to keep this pot on the stone bench, any assessment of compensation must also be based on reasonableness. The difference between the photographs of the landlord and tenants suggests that the mark is relatively faint. Put bluntly, it needs to be asked whether it is worth the cost to repair when there is no impact on the use of the bench and more minor damage may happen to the bench while the property is tenanted.
Also, although quotes can be accepted at times where repair work has not in fact been done at the time of a hearing (which in this case was more than 5 months after the tenancy had ended), it is relevant for the Tribunal to ask whether the cost will actually be incurred. There is no loss until a cost has been incurred or a loss of value can be quantified.
The landlord has not succeeded with the claim so is not entitled to the filling fee. The tenants have succeeded so are entitled to suppression of their names from the published order. I also suppress the landlord’s name on this occasion as am satisfied the application was made in good faith.

Tenancy Tribunal case 5064448 — Property damage

At a glance

Tenancy Tribunal case 5064448 — Property damage

At a glance

Claims & awards

Order

Reasons

What is the law on liability for damage during a tenancy?

Is there damage and, if so, is it careless?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

What is the law on liability for damage during a tenancy?

Is there damage and, if so, is it careless?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions