Published tribunal order
Tenancy Tribunal case 5227271 — Property damage at 10A Panama Road, Mount Wellington, Auckland 1062
Decided 26 Sept 2025 · Published 26 Sept 2025 · Application 5227271
- Property damage
Order
- [The tenant/s] must pay Street Smart Property Management Limited $1,087.84 immediately, calculated as shown in the table below.
Reasons
- Both parties attended the hearings on 3 July 2025 (in person) and 9 September 2025 (by videoconference).
- On 7 April 2025 the tenant applied to the Tribunal for a refund of the bond and compensation of $1,000.00. The tenant says that the landlord breached her quiet enjoyment, did not give sufficient notice to enter, and did not follow appropriate notice requirements when the property was put on sale. The tenant says further that the landlord made unreasonable bond claims and failed to differentiate between wear and tear and tenant damage.
- On 9 July 2025 the landlord applied to the Tribunal for rent arrears, water charges, and repairs. The claimed cost of repairs was $4,000.00. A bond of $2,380.00 was paid and lodged and has been refunded to the landlord (most likely, because they made a claim for the bond pursuant to section 22A of the Residential Tenancies Act 1986 (the Act)).
- The parties signed a residential tenancy for a fixed term from 19 September 2019 to 19 March 2020. The tenancy continued as a periodic tenancy until it ended on 30 July 2024. Quiet Enjoyment
- The landlord advised the tenant in writing on 29 November 2023 that the premises were to be placed on the market for sale. The parties discussed open homes. On 4 December 2023 the landlord advised that there would be open homes on Saturday and Sunday, 30 minutes on each day. The landlord proposed a rent discount of $50.00.
- On 5 December 2023 the tenant complained about unwanted access by the landlord. The tenant said she was happy to accept $100.00 if the landlord wanted to hold an open home that weekend.
- On 20 December 2023 the landlord advised that they would be doing private viewings rather than open homes.
- On 4 February 2024 the tenant complained of a “hostile interrogation” of her son by the sales agent.
- On 12 February 2024 the landlord said there had been limited interest in the open homes, and they had decided to discontinue them. On 23 April 2024 the landlord advised that the owner was no longer pursuing sale of the property.
- The tenant said there was an open home from December to March each week, on Saturday and Sunday between 1pm and 1.30pm. When the viewings started being by appointment, it meant they had to have the house presentable for potential buyers on 48 hours’ notice, and she felt pressured.
- The landlord said there were only open homes on two weekends and the tenant was paid $150.00. The open homes stopped in December 2023 and there were one or two private viewings.
- Section 48(3) of the Act enables the landlord to enter for the purpose of showing the premises to prospective purchasers. The landlord can only enter with the tenant’s prior consent, but the tenant cannot withhold consent unreasonably and may make the consent subject to any reasonable conditions.
- The tenant agreed to the open homes and agreed to the private viewings. I do not consider that an open home for 30 minutes on a Saturday and a Sunday was excessive. On the landlord’s evidence, there were only a few open homes and private viewings. The tenant was compensated for the inconvenience.
- In an email dated 5 December 2023, the tenant said the sales agent arrived at the property and made comments about tidiness. The email also referred to phone calls on Friday at 8.40pm and on Saturday to gain access after the tenant had tried to cancel the open home due to sickness. The landlord replied that she would speak to the agent about the timing of their calls, to ensure they gave the required 48 hours’ notice.
- The tenant also said the agent was rude to her son on Saturday 3 February 2024. According to the tenant, the sales agent “aggressively” asked him why he was at the premises. The tenant said the sales agent was argumentative on Sunday 4 February 2024 and asked them to leave while buyers looked through the property. Responding on 7 February 2024, the landlord suggested there had been a misunderstanding.
- Pursuant to section 38 of the Act, a landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. As discussed above, I am not persuaded that there were an excessive number of open homes or viewings, and the tenant could have objected to the open homes. To the extent her quiet enjoyment was breached, modest compensation was offered and paid. The incidents of claimed “aggressive” behaviour from the sales agent may reflect a clash of personalities between the tenant and the agent. There is long-standing authority that a breach of quiet enjoyment is not established where this is the sole basis for the claim (Smith & Olmstead v Floris (TT Auckland) 1404/93, 9 March 1993).
- The phone calls late in the evening on Friday 1 December 2023 and during Saturday 2 December 2023 (referred to above) may well be in a different category. The tenant said she had made it clear that the open home needed to be cancelled due to illness. I consider it was probably a breach of the tenant’s quiet enjoyment to be called late in the evening on a Friday and the next day, a Saturday, about an open home in those circumstances. However, the breach is relatively minor and happened some time ago. I award compensation of $100.00. Rent and Water
- The tenant gave notice to end the tenancy on 22 July 2024. At that time, a tenant could terminate a periodic tenancy by giving 28 days’ notice. The notice therefore expired on 20 August 2024. The landlord claimed rent in the sum of $92.30 to 19 August 2024. While the tenant said she vacated on 30 July 2024, I accept that the tenant remained liable for rent to the expiry of her notice. I award the rent claimed.
- The landlord claimed $525.54 for water charges to the end of the tenancy. The water summary shows regular payments of $35.00 by the tenant towards the water charges.
- I note that the schedule includes $201.25 for the cost of a handyman repairing a door. As I understand it, this related to the cost of repairs to a door which the landlord and tenant agreed to share (the total cost being $402.50). There is an email to this effect from the landlord on 22 December 2023. I award the amount claimed for water charges. Damage to the Premises
- The landlord claimed the quoted cost of repairs to walls ($1,850.00) and doors ($2,150.00) a total of $4,000.00. The invoice for doors included replacement kitchen window glass ($250.00) laundry door glass replacement ($250.00) and front bedroom sliding door glass replacement ($250.00).
- The tenant said the damage to the kitchen and bedroom windows was accidental and other damage was pre-existing. The tenant provided a schedule with a comparison of the photographs taken by the landlord at the ingoing inspection on 19 September 2019, the exit inspection on 2 August 2024, and photographs the tenant had taken on 19 September 2019 and 29 July 2024.
- The ingoing report identifies a crack in the glass of the ranch slider door in the lounge (photographs 279 and 283). The window is shown completely smashed in the exit report. So, it may have had pre-existing damage which got worse during the tenancy. The landlord withdrew this claim at the second hearing.
- There is further damage identified in the exit inspection report, including damage to the tops of bedroom doors (photographs 58, 92, 93, 177). The bathroom door was damaged (photographs 191-192). There were patches and drawings on the walls in bedroom 1 (photograph 69) bedroom 2 (photograph 99) bedroom 3 (photographs 126, 130, 149) the laundry (330-331, 349) and the kitchen (photograph 11).
- The tenant submitted that the damage shown in photographs 11, 58, 99, 126, 149, 177, 330-331, and 349 was wear and tear. She submitted that the damage shown in photographs 69, 92, 191-192, 330-331, 349 was pre-existing.
- Fair wear and tear is damage caused by the normal use of premises. This reflects the fact that even ordinary use of premises causes them to gradually wear out. The tenant is not liable for fair wear and tear.
- The landlord has the burden of showing that damage occurred during the tenancy and is more than fair wear and tear. The tenant has the burden of showing that the damage was not intentionally or carelessly caused and the tenant is responsible for the actions of others.
- Where the damage is caused carelessly, the tenant’s liability for each act or omission causing damage is limited to the insurance excess (sections 40, 41 and 49B of the Act). The insurance excess was $550.00 and $250.00 for glass. The landlord advised that insurers have not paid for any damage apart from the broken glass in the ranch slider door.
- As to whether there was pre-existing damage: • Photograph 69 shows a patch repair to the wall of bedroom 1. The ingoing report does not show any damage to the wall. I find that the damage occurred during the tenancy. • Photograph 92 shows a crack from the top of the bedroom door in bedroom 2. The ingoing report does not show any damage to this door. The tenant has provided a photograph taken on 19 September 2019 which is said to show the damage. A small crack is visible in the photograph. It is significantly bigger in the exit inspection photograph on 2 August 2024. I find that this damage was pre-existing but was made worse during the tenancy. The extent of the cracking suggests the further damage is more than fair wear and tear. • Photographs 191-192 show damage to the bathroom door. The ingoing report does not show this area. The tenant has provided a photograph taken on 19 September 2019 which is said to show the damage. I find that this was pre-existing damage. • Photographs 330-331 show damage to the laundry wall. The tenant notes that the same damage is visible in the ingoing report, at photograph 242. I agree that the damage looks similar, and to be in a similar location. I find that this was pre-existing damage. • Photograph 349 appears to be the same damage to the laundry wall shown in the ingoing report.
- As to whether damage was fair wear and tear: • Photograph 11 shows damage to the hallway door. I am satisfied that this was caused during the tenancy and is more than fair wear and tear. • Photograph 58 shows a crack at the top of the door to bedroom 1. The damage is more than fair wear and tear. • Photograph 99 shows a patch on the wall of bedroom 2 at about shoulder height. The damage is more than fair wear and tear. • Photograph 126 shows drawing on the walls of bedroom 3. The tenant said these marks were missed during cleaning prior to exit. The damage is more than fair wear and tear. • Photograph 149 shows marks on the wall of bedroom 3. The tenant said this was caused by a removable self-adhesive hook. I find that the tenant is liable for this damage pursuant to section 42(6) of the Act, which relates to damage caused on removal of a tenant’s fixture. • Photograph 177 shows a crack at the top of the door to bedroom 4. The tenant said this was caused by towels being hung on the door during the tenancy. I find that this minor damage was fair wear and tear.
- The tenant submitted that the damage to various windows was accidental. One window was broken when it was hit by a child’s toy; another was damaged while moving furniture; and the door glass was broken when the door slammed shut due to a strong wind when the tenant’s daughter went outside.
- Section 41 of the Act imposes liability on the tenant for the actions of others. If the act would have been a breach of the tenancy agreement if done by the tenant, the tenant is responsible. In my view, carelessness is required to damage a window by striking it with an object, or when moving furniture, or by not preventing a door from slamming. The damage is not intentional, but it can only happen through a lack of foresight and reasonable care. I find the tenant liable for the broken windows and glass door panels.
- I have found above that some of the damage was pre-existing, and some was fair wear and tear. Assessing an appropriate adjustment to the repair cost as best I can, I award 80% of the amount claimed (deducting $800.00) an award of $3,200.00. From this I also deduct the cost of repair to the sliding door glass ($250.00). The final award for damage is $2,950.00 and credit must also be given for the bond. Filing fee
- Both parties have had some success. The parties will bear their own costs.
- There was no request for name suppression.