What was the outcome of Tenancy Tribunal case 5251240?

The tribunal order states: Mathew John Peters and Shelley Andrea Peters to pay Barfoot & Thompson

How much money was awarded in case 5251240?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5251240?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5251240?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12158740-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5251240?

The tribunal order states: Mathew John Peters and Shelley Andrea Peters to pay Barfoot & Thompson

How much money was awarded in case 5251240?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5251240?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5251240?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12158740-Tenancy_Tribunal_Order.pdf.

7 Melanesia Road, Kohimarama, Auckland 1071 Tenancy Tribunal Case 5251240 — Property damage

Order

Mathew John Peters and Shelley Andrea Peters to pay Barfoot & Thompson Limited Mission Bay As Agent For For John & Evy Davies; John Davis $551.48 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $8,000.00 (6136798-004) immediately apportioned as follows: Barfoot & Thompson Limited Mission Bay As Agent For For John & Evy Davies; John Davis: $551.48 Mathew John Peters and Shelley Andrea Peters: $7,448.52

Reasons

Both parties attended the hearing.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). Evidential burden
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally 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.
In summary, I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. If any claim is not established to the balance of probability, it must be dismissed.
The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision. LANDLORD’S CLAIMS

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

Section 40(1)(e)(iii) of the RTA confirms that on termination of the tenancy, the tenants must “leave the premises in a reasonably clean and reasonably tidy condition”. This provision does not impose an absolute standard of responsibility. The obligation is not to leave the premises in an immaculate standard of cleanliness and tidiness, nor does it mean that it will necessarily be up to the standard that a landlord might consider for a new tenant, for sale, or for the owner to re-occupy 1 : The standard will vary according to the age and condition of the premises and, in particular, the condition that they were in at the start of the tenancy 2 :The test is objective and not based on the subjective opinion of either the landlord or the tenant.
In Housing New Zealand Ltd v Holloway Auckland TT 215/93, 8 February 1993 the Tribunal stated: “‘Reasonably tidy’ grounds are not perfect ‘prizewinning’ grounds, but neither [are they] grounds that suggest a property is unoccupied, or constitute a health hazard (vermin) or fire risk. Rather [it is] something in between; grounds maintained to a standard that an average, reasonable bystander would consider ‘reasonably tidy’.”
Equally, the inside of a premise does not have to be left at hotel or motel standard, but at a standard an average, reasonable bystander would consider “reasonably clean and tidy”. Additional cleaning claim
The landlord claims the tenants did not leave the premises reasonably clean and tidy. It produced photographs to support its claim for compensation of $598.00 for the cleaning costs it incurred to get the house to what the owner considers to be a reasonably clean and tidy condition.
The landlord made much of the dirty/mouldy window ledges, a few windows that required additional cleaning, the edges of the oven door and glass and the glass surfaces in between the two glass panes of the oven door, fly excrement on the ceiling and light fitting, a dirty television, dishwasher, insinkerator and the inside the rotator of the washing machine.
The tenants produced evidence that showed the premise was reasonably clean and tidy when the tenancy commenced, but it was not immaculate, and the tenants had to undertake some cleaning and tidying inside the house and in the gardens to get it to the standard they considered clean and tidy enough to live 1 Face Property Management Ltd v Mike Bourne Contracting Ltd Christchurch TT 12/00532/CH, 24 August 2012. 2 Westwood v Western [1994] DCR 759. in. They produced photographs to show the ceilings and light fittings had fly excrement on them on 6 March 2020 as well as dried up old liquid spills on a few walls. They also produced photographs of the trees that had not been trimmed and were dropping dead foliage and pods that required some extensive tidying and the removal of garden waste. Furter, they produced an invoice for having the carpet commercially cleaned at the start of the tenancy, as they claimed it had not been done due to the short time between the prior tenants moving out and them moving in. The owner denied this and said he had paid for the carpet to be cleaned before they moved in.
The tenants also produced two invoices that prove they had commercial cleaners come to undertake a full exit clean at a cost of $405.00 and $900.00. The invoice show that the windows, window sills and oven were all part of the work undertaken by these cleaning companies. The tenants say they also did at least 8 hours of cleaning themselves and had their parents come to help with cleaning and tidying before they exited.
The tenants and the landlord’s photographic evidence shows the premise was left in a reasonably clean and tidy state at the end of the tenancy and that any of the areas the tenants may have missed were offset by areas the landlord had missed in its cleaning between these tenants commencing their tenancy and the prior tenants exiting.
I am satisfied that the condition of the premise at the end of the tenancy was comparable to the condition it was handed back to the landlord in, and that the condition was what an average, reasonable bystander would consider “reasonably tidy” , in all the circumstances.
I find that the landlord has not provided sufficient evidence to prove this claim on the balance of probabilities and dismiss it accordingly. Master bedroom drapes
The landlord also claims $189.20 for half the cost of having the master bedroom drapes professionally cleaned as there was a large brown stain on one of these curtains that could not be washed off in a normal washing machine.
The landlord has produced photographs that prove the drapes were clean and tidy at the start of the tenancy and at the end had a large brown stain on the front that required professional cleaning.
The tenants have not disproven liability for this damage.
The amount ordered is proved.

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 careless, and occurs after 27 August 2019, section 49B RTA 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.
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.
The landlord claims the following damage was caused during the tenancy and that the tenants are liable for the cost to remediate these damage as they are more than fair wear and tear, not accidental damage and are the result of careless acts or omissions by the tenants or persons at the premise with the tenants’ consent: a. Broken/missing icetray and vege bin; b. Exterior paint and hole repair from the removal of the CCTV cameras the tenants installed during the tenancy; c. Damage to the front gate motor cover and some water damage that affected some of the motor functionality. General damages for which the tenants accept liability
The tenants accept liability for the cost of replacement of the icetray and vege bin and the exterior paint and hole repair. They say they would have filled the holes and repainted if requested but left the holes as they were in case the landlord wanted to install CCTV cameras in the same places.
The amounts ordered are proved.
I have considered 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 considered the age and condition of the items at the start of the tenancy and their likely useful lifespan. Gate cover damage/water damage
The gate motor cover was damaged sometime in September 2024 while the tenants were away overseas. This damage was not noticed by the parties until a contractor came to look at a reoccurring issue with the loose entrance gate lock plate and discovered the damage to the motor cover and that water was getting into the motor because of the damaged cover.
The parties confirmed the magnetic strip on the gate lock coming loose was a historic issue and that there was nothing to suggest the two incidents were related.
The tenants reported the magnetic strip issue to the landlord on 2 October 2024. The landlord engaged a contractor to investigate the issue on 3 October 2024. It was when the contractor came on 9 October 2024 that the motor cover and water damage issues were discovered. The contractor covered the damaged cover with plastic to prevent more water getting into the motor. When the contractor reported back to the landlord, it thought the issue was to do with the lock and not the motor from report. It was not until the landlord visited the property on 22 October 2024 that the landlord first realised there was an issue with the gate motor cover in addition to the pedestrian gate magnetic plate lock issue.
The parties agree the damage has occurred from the top down, so it is obvious that someone had jumped on it to do the damage.
The landlord made an insurance claim for these repairs and claims the tenants’ teenage son and/or his friends caused the damage while the tenants were away and that the tenants are liable for the $1,250.00 excess. The landlord says the tenants accepted the teenagers had visited the house a few times while they were away and initially stated in an email that they could not immediately rule out teenage antics having caused the damage.
The tenants denied liability for the insurance excess of $1,250.00 for the gate motor cover repair and remedial work to address the water damage that occurred because of the cover being broken for at least a month before anyone noticed it. They stated they had spoken to their son and he confirmed that neither he or his friends had stood on the motor cover to get over the gate and that there was no need for them to do this as they had the gate code.
While the tenants were away during September 2024 their parents visited one weekend to keep an eye on the place and do some garden work. They also knew nothing about the cause of the damage to the gate motor cover.
The tenants state that someone may have tried to jump over the fence while they were away, potentially to scout the place for a burglary, but that no one at the house with their consent had caused the damage.
The landlord says the tenants had substantive CCTV footage of the property and one camera was angled at the gate, but the landlord had been unable to get any CCTV footage of the incident from the tenants. The tenants confirmed during the hearing that there was no CCTV footage of the incident. The landlord is not convinced there was no CCTV footage and appears to consider this lack of CCTV evidence as the tenants covering for whoever did the damage. The tenants deny this.
I am satisfied there is no compelling proof that the tenants or persons at the premise with their consent did this damage. It is more likely some random person did this damage during the tenants’ overseas vacation, than the tenants’ son and his friends or the tenants’ parents having done this damage when they all had the code to open the gate and had no need to jump over it using the motor as a springboard.
The lack of CCTV footage of the incident is not proof of the tenants’ liability. As they tenants said, the gate camera could have run out of battery while they were away as they had not asked anyone to charge it in their absence. They recall some of the cameras did require charging on their return but were unsure whether this camera was one of them.
I find that the landlord has not provided sufficient evidence to prove this claim on the balance of probabilities and dismiss it accordingly.

OTHER CLAIMS

Reimbursement of filing fees

Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.
Because the landlord has substantially succeeded with its claims, I must reimburse the filing fee.
Because the tenants have substantially succeeded with their claim, I have reimbursed the filing fee.

Tenancy Tribunal case 5251240 — Property damage at 7 Melanesia Road, Kohimarama, Auckland 1071

Tenancy Tribunal case 5251240 — Property damage at 7 Melanesia Road, Kohimarama, Auckland 1071

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

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

Is the tenant responsible for the damage to the premises?

OTHER CLAIMS

Property management

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

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

Is the tenant responsible for the damage to the premises?

OTHER CLAIMS

Property management