What was the outcome of Tenancy Tribunal case 5136128?

The tribunal order states: Shannon Shinn and Robin Shinn to pay Ronald Joseph Left and Sue

How much money was awarded in case 5136128?

Property Damage: $900.00 awarded to landlord; Timber (Steps) In Carport: $300.00 awarded to landlord; Rubbish Removal: $100.00 awarded to landlord

What type of tenancy dispute was case 5136128?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5136128?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11404730-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5136128?

The tribunal order states: Shannon Shinn and Robin Shinn to pay Ronald Joseph Left and Sue

How much money was awarded in case 5136128?

Property Damage: $900.00 awarded to landlord; Timber (Steps) In Carport: $300.00 awarded to landlord; Rubbish Removal: $100.00 awarded to landlord

What type of tenancy dispute was case 5136128?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5136128?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11404730-Tenancy_Tribunal_Order.pdf.

23 Gap Road, Manukau Heads, RD 4, Awhitu 2684 Tenancy Tribunal Case 5136128 — Property damage

Claims and awards in Tenancy Tribunal application 5136128 — net $1,300.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: conservatory carpet replacement	$900.00	Repairs: conservatory carpet replacement
Repairs: timber (steps) in carport	$300.00	Repairs: timber (steps) in carport
Rubbish removal	$100.00	Rubbish removal
Net award	$1,300.00
Bond	$2,600.00
Total payable by Tenant to Landlord	$1,300.00

Order

Shannon Shinn and Robin Shinn to pay Ronald Joseph Left and Sue Sutherland $1,300.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,600.00 (6491376-008) immediately apportioned as follows: Ronald Joseph Left and Sue Sutherland: $1,300.00 Shannon Shinn and Robin Shinn: $1,300.00
The tenant’s claim is dismissed.

Reasons

Both parties attended the hearing.
The landlord have applied for compensation, and refund of the bond following the end of the tenancy on 29 September 2024.
The tenant have sought damages and exemplary damages against the landlord on account of failure to disclose to the tenant that there is asbestos in the property.
I address the parties’ respective claims as follows.

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.
I find that the tenant has not removed all rubbish, specifically the pallets left behind. While the landlord have not picked up on the issue at the parties’ joint inspection, there is nothing to prevent the landlord from making an application and prove their claim accordingly before me today.
There is also no obligation for the landlord to give the tenant an opportunity to return to the property to remediate the issue after the tenancy has already ended.
Under normal circumstances where parties are still in good (or reasonable) terms between themselves, I would have directed that the tenant be allowed to return to the property and retrieve the items. However, I consider that the parties’ relationship have since deteriorated to such an extent that it would not be appropriate for me to direct the tenant to return to retrieve their pallets.
I consider the sum of $100.00 ordered for rubbish removal proved, despite the lack of an actual invoice. The items had to be disposed off and I consider $100 to be fair and reasonable in the circumstances.

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.
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 have not satisfied me (on balance) that the damage to the curtains occurred during the tenancy. There is no pre-tenancy inspection report which show the condition of the curtains at the start of the tenancy. The marketing photos provided by the landlord do not show whether the curtains were damaged or otherwise. The onus was on the landlord to prove on balance that the curtains were not in a scratched condition at the start of the tenancy, and the landlord failed to do so. For those reasons, the landlord’s claim to do with curtain replacement fails.
The following damage was caused during the tenancy: conservatory carpet and timber in the carport. I find the damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
During the tenancy, on 30 October 2023, the tenant have texted the landlord to state that they got back from work and discovered their dogs have scratched and damaged the conservatory carpet. While the tenant attributed blame on rodents in the premises agitating their dogs, I consider the tenant liable for the actions of their dogs while they were kept in the conservatory.
Adjudicator A Aiolupotea has in her decision of 9 December 2024 under application number 4998191 determined as follows: ...the landlord maintained the property in a reasonable state of repair. The rodent issue arose after the Tenants moved in, and the evidence suggests that the infestation was influenced by the Tenants' lifestyle factors. The Landlord responded promptly by offering to reimburse the Tenants for the mice bait and traps. However, when it became apparent that the issue was an infestation, the Tenants did not provide independent proof that the delay in the Landlord's response caused the problem to worsen. The Tenants failed to submit adequate evidence, such as emails, receipts for wasted food, photographs of contamination, or expert testimony regarding the dogs' distress. There was no evidence from a canine expert to suggest that the dogs' stress was caused by the mice, rather than by being left alone for long hours. Additionally, there were no photographs of the kitchen bench or other areas where the mice had been, which would have clarified the extent of the issue.
I am satisfied that the damage to the carport timber occurred during the tenancy. The damage was also caused by the tenant’s dogs.
Only the amounts ordered are proved. I have taken into account betterment and depreciation. 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. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.

Is the landlord obliged to disclose whether there is asbestos on the premises?

The tenant contend that the landlord are obliged to disclose that the premises contained asbestos. The tenant claim that the landlord knew that the ceiling of the premises contained asbestos and that they failed to inform them at the start of the tenancy. The tenant say that had they known about asbestos being present at the premises, they would likely not have rented the premises in the first place. The tenant sought the return of their bond and damages/exemplary damages for the failure to disclose.
I find however that there is no general obligation by a landlord to disclose whether or not the premises contained asbestos.
Under the Health and Safety at Work Act 2015 and Health and Safety at Work (Asbestos) Regulations 2016, landlords must manage any asbestos-related risks when work is being done at their property.
This is to protect the health and safety of tenants, neighbours, contractors and anyone else who may be affected whilst work is being carried out at the property.
The need for an asbestos management plan to be written by the landlord or by a licensed asbestos remover to manage any related risks recognises that asbestos is only of concern when the material is being worked on, tested on or otherwise disturbed. For example, if contractors are doing repairs, this could disturb material in the premises that contains asbestos.
Asbestos was commonly used until the 1980s, and may also be in properties built or renovated before 1 January 2000.
The risk of exposure depends on the kind of work planned. The types of work that may create risk include renovations, refurbishments, or demolition work, including any work that includes drilling or cutting into asbestos-containing materials.
The above obligations however do not entail a general duty to disclose whether or not asbestos is actually present in the ceilings. As a landlord, they are obliged to manage any work related risks.
I consider it adequate that the tenancy agreement signed by the parties contained a general term that states that the tenant acknowledges that asbestos in some form may exist in or about the property. Here, the tenant have agreed not to do work, drill, cut or otherwise damage any wall or other surface which might release asbestos fibres into the air.
I accept the landlord’s evidence that while they suspect that asbestos may be present at the premises, they do not know for a fact that asbestos is actually present. This is because the very act of testing the fibrous material in the ceiling would itself cause disturbance to the asbestos (if any) in the premises. It is not generally wise nor appropriate for actual testing to be done on the material in the circumstances.
For the above reasons, I dismiss the tenant’s claim for damages and exemplary damages pertaining to the alleged presence of asbestos and disclosure obligations to do with asbestos at the premises.
Considering the amounts proved, I order the bond to be disbursed to the parties as set out in the table above.

Claims and awards in Tenancy Tribunal application 5136128 — net $1,300.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: conservatory carpet replacement	$900.00	Repairs: conservatory carpet replacement
Repairs: timber (steps) in carport	$300.00	Repairs: timber (steps) in carport
Rubbish removal	$100.00	Rubbish removal
Net award	$1,300.00
Bond	$2,600.00
Total payable by Tenant to Landlord	$1,300.00

Order

Shannon Shinn and Robin Shinn to pay Ronald Joseph Left and Sue Sutherland $1,300.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,600.00 (6491376-008) immediately apportioned as follows: Ronald Joseph Left and Sue Sutherland: $1,300.00 Shannon Shinn and Robin Shinn: $1,300.00
The tenant’s claim is dismissed.

Reasons

Both parties attended the hearing.
The landlord have applied for compensation, and refund of the bond following the end of the tenancy on 29 September 2024.
The tenant have sought damages and exemplary damages against the landlord on account of failure to disclose to the tenant that there is asbestos in the property.
I address the parties’ respective claims as follows.

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.
I find that the tenant has not removed all rubbish, specifically the pallets left behind. While the landlord have not picked up on the issue at the parties’ joint inspection, there is nothing to prevent the landlord from making an application and prove their claim accordingly before me today.
There is also no obligation for the landlord to give the tenant an opportunity to return to the property to remediate the issue after the tenancy has already ended.
Under normal circumstances where parties are still in good (or reasonable) terms between themselves, I would have directed that the tenant be allowed to return to the property and retrieve the items. However, I consider that the parties’ relationship have since deteriorated to such an extent that it would not be appropriate for me to direct the tenant to return to retrieve their pallets.
I consider the sum of $100.00 ordered for rubbish removal proved, despite the lack of an actual invoice. The items had to be disposed off and I consider $100 to be fair and reasonable in the circumstances.

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.
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 have not satisfied me (on balance) that the damage to the curtains occurred during the tenancy. There is no pre-tenancy inspection report which show the condition of the curtains at the start of the tenancy. The marketing photos provided by the landlord do not show whether the curtains were damaged or otherwise. The onus was on the landlord to prove on balance that the curtains were not in a scratched condition at the start of the tenancy, and the landlord failed to do so. For those reasons, the landlord’s claim to do with curtain replacement fails.
The following damage was caused during the tenancy: conservatory carpet and timber in the carport. I find the damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
During the tenancy, on 30 October 2023, the tenant have texted the landlord to state that they got back from work and discovered their dogs have scratched and damaged the conservatory carpet. While the tenant attributed blame on rodents in the premises agitating their dogs, I consider the tenant liable for the actions of their dogs while they were kept in the conservatory.
Adjudicator A Aiolupotea has in her decision of 9 December 2024 under application number 4998191 determined as follows: ...the landlord maintained the property in a reasonable state of repair. The rodent issue arose after the Tenants moved in, and the evidence suggests that the infestation was influenced by the Tenants' lifestyle factors. The Landlord responded promptly by offering to reimburse the Tenants for the mice bait and traps. However, when it became apparent that the issue was an infestation, the Tenants did not provide independent proof that the delay in the Landlord's response caused the problem to worsen. The Tenants failed to submit adequate evidence, such as emails, receipts for wasted food, photographs of contamination, or expert testimony regarding the dogs' distress. There was no evidence from a canine expert to suggest that the dogs' stress was caused by the mice, rather than by being left alone for long hours. Additionally, there were no photographs of the kitchen bench or other areas where the mice had been, which would have clarified the extent of the issue.
I am satisfied that the damage to the carport timber occurred during the tenancy. The damage was also caused by the tenant’s dogs.
Only the amounts ordered are proved. I have taken into account betterment and depreciation. 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. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.

Is the landlord obliged to disclose whether there is asbestos on the premises?

The tenant contend that the landlord are obliged to disclose that the premises contained asbestos. The tenant claim that the landlord knew that the ceiling of the premises contained asbestos and that they failed to inform them at the start of the tenancy. The tenant say that had they known about asbestos being present at the premises, they would likely not have rented the premises in the first place. The tenant sought the return of their bond and damages/exemplary damages for the failure to disclose.
I find however that there is no general obligation by a landlord to disclose whether or not the premises contained asbestos.
Under the Health and Safety at Work Act 2015 and Health and Safety at Work (Asbestos) Regulations 2016, landlords must manage any asbestos-related risks when work is being done at their property.
This is to protect the health and safety of tenants, neighbours, contractors and anyone else who may be affected whilst work is being carried out at the property.
The need for an asbestos management plan to be written by the landlord or by a licensed asbestos remover to manage any related risks recognises that asbestos is only of concern when the material is being worked on, tested on or otherwise disturbed. For example, if contractors are doing repairs, this could disturb material in the premises that contains asbestos.
Asbestos was commonly used until the 1980s, and may also be in properties built or renovated before 1 January 2000.
The risk of exposure depends on the kind of work planned. The types of work that may create risk include renovations, refurbishments, or demolition work, including any work that includes drilling or cutting into asbestos-containing materials.
The above obligations however do not entail a general duty to disclose whether or not asbestos is actually present in the ceilings. As a landlord, they are obliged to manage any work related risks.
I consider it adequate that the tenancy agreement signed by the parties contained a general term that states that the tenant acknowledges that asbestos in some form may exist in or about the property. Here, the tenant have agreed not to do work, drill, cut or otherwise damage any wall or other surface which might release asbestos fibres into the air.
I accept the landlord’s evidence that while they suspect that asbestos may be present at the premises, they do not know for a fact that asbestos is actually present. This is because the very act of testing the fibrous material in the ceiling would itself cause disturbance to the asbestos (if any) in the premises. It is not generally wise nor appropriate for actual testing to be done on the material in the circumstances.
For the above reasons, I dismiss the tenant’s claim for damages and exemplary damages pertaining to the alleged presence of asbestos and disclosure obligations to do with asbestos at the premises.
Considering the amounts proved, I order the bond to be disbursed to the parties as set out in the table above.

Tenancy Tribunal case 5136128 — Property damage at 23 Gap Road, Manukau Heads, RD 4, Awhitu 2684

At a glance

Tenancy Tribunal case 5136128 — Property damage at 23 Gap Road, Manukau Heads, RD 4, Awhitu 2684

At a glance

Award balance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Is the landlord obliged to disclose whether there is asbestos on the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Is the landlord obliged to disclose whether there is asbestos on the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions