What was Tenancy Tribunal case 5260820 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 5260820?

Filing Fee: $27.00 awarded to landlord; Kitchen Vinyl: $1,000.00 awarded to landlord; Wood Flooring: $150.00 awarded to landlord

What type of tenancy dispute was case 5260820?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5260820?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12284945-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5260820 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 5260820?

Filing Fee: $27.00 awarded to landlord; Kitchen Vinyl: $1,000.00 awarded to landlord; Wood Flooring: $150.00 awarded to landlord

What type of tenancy dispute was case 5260820?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5260820?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12284945-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5260820 — Property damage

Claims and awards in Tenancy Tribunal application 5260820 — net $584.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: vinyl	$1,000.00	Repairs: vinyl
Repairs: wood flooring	$150.00	Repairs: wood flooring
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$584.85
Total payable by Tenant to Landlord	$584.85

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
[The tenant/s] must pay [The landlord/s] $3,493.23 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $592.15 ([Bond number suppressed]) to [The landlord/s] immediately.

Reasons

Both parties attended the hearing which was held by audio visual link. [Property manager representative] represented the property management company and [the landlord/s] also attended.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
As applicant, the onus of proof lies with the landlord. It is the civil standard of “balance of probabilities” which is, put another way, what is more likely than not. The leading District Court decision on the issue of evidence at Tenancy Tribunal hearings is Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
I consider each of the claims individually below bearing in mind the standard of proof.

Are the tenants responsible for rubbish removal costs?

The landlord claims $148.38 which was the disposal costs of items they say belonged to the tenants that were left at the property following the end of the tenancy.
Section 40(1)(e)(ii) of the Residential Tenancies Act 1986 (RTA) states that at the end of the tenancy the tenant must leave the premises reasonably clean and tidy and remove all rubbish.
[The tenant/s] say they took all their belongings when they left and during the six subsequent visits undertaken at the request of the property manager. They say the wood and lawnmower left in the shed were in the property at the beginning of the tenancy. They questioned the cost that was incurred and that the work was not done until February whereas they vacated in November.
[The landlord/s]’s evidence is that she had to dispose of pellet wood, a lawnmower a tyre and a potty. It took her until February to do so she says because of the summer holidays. She did not charge for her time but just the disposal costs which she says solely relates to property the tenants left in the tenancy which were not present at the beginning.
There is no pictorial evidence that the shed was clear and empty at the commencement of the tenancy. I therefore do not find established in evidence that the lawnmower and miscellaneous wood were not present in the property at the beginning of the tenancy.
The remaining items in dispute the tenants say they removed, [the landlord/s] says they did not.
[The landlord/s] gave direct evidence that she removed the belongings that can be seen in the photos and the cost has been established by invoice. The photos were however taken prior to the tenants returning to the property to address post tenancy matters, and the items were removed three months after the end of the tenancy.
The tenants did return to the property at the request of the property manager a number of times. On that basis I find it more likely than not that they did remove the items requested of them. Given the property manager was closely managing the post tenancy situation I find it unlikely she allowed further items to remain.
Accordingly, this claim has not been established in evidence and therefore must be dismissed.

Are the tenants responsible for damage to the premises?

The landlord seeks compensation for having to repair and replace two areas of the property’s flooring.
Firstly, downstairs there are vinyl planking boards that have been scratched and ostensibly moved around. [The landlord/s] says the flooring was in average condition when the tenancy started but with no scratches. The flooring had been installed approximately five years earlier.
[The tenant/s] accept there were some scratches they think occurred from moving their couch. They had a trade look at it to see if boards could be replaced. His advice was that it would not be possible as the boards would look different. His work was not supervised by [the tenant/s] and it appears he may have moved some of the boards around in an attempt to address the issue. He did not charge for his visit and [the tenant/s] were not aware of what he had done until the hearing when [the landlord/s] provided a video of the area.
The claim is for $2,000 which is the insurance excess to replace the flooring in the area. The actual cost will be $3,162.50. The owners have not yet arranged the repair due to a lack of available funds but they are residing there.
[The tenant/s] accept they scratched the floor whilst moving their couch and are open to a reasonable payment in compensation but not the full amount sought. Agreement could not be reached on an amount at the hearing.
Secondly there was significant scratching of the timber flooring in the dining room. The landlord is claiming reimbursement of the $747.50 it will cost to have the area sanded and coated.
[The landlord/s] says the tenants were careless in their use of the dining room as the rubber stoppers on the chairs were dislodged and the marks are consistent with leaning back in the chairs.
[The tenant/s] say the entire area of the wood flooring is dented and scratched because of the nature of the wood. They cleaned it with a special product designed for such surfaces and were not negligent in their use. The law
To be successful in such a claim, 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.
Fair wear and tear is the expected toll taken on a house that comes from usual living. It is manifest that when a landlord rents premises to a tenant, that the tenants will live in the dwelling, and in the process cause some wear and tear.
Carelessness is not defined in the RTA, but its usual meaning is the lack of care, negligence or lack of forethought. It can also be defined as “heedless or thoughtless” and can cover a situation of inadvertent lack of care.
The standard of care is the standard of an ordinary careful person, so it is an objective test. An ordinary careful person is not expected to take precautions against every foreseeable risk, but only against those risks that are reasonably likely to happen. Furthermore, the damage must be of a kind that can fairly and reasonably be considered as arising naturally from the breach or a probable result of the breach.
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. The landlord’s insurance excess is $2,000.
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.
Betterment and depreciation must also be considered. 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, the Tribunal will take into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Discussion
The photos and video establish considerable scratching to the vinyl planking and that boards have been moved around in an unprofessional way. I find that the scratching does exceed fair wear and tear as this was a short seven-month tenancy. The board installation has also been damaged in their relocation.
Accordingly, I find the tenants liable to make a contribution to the repair. They are liable for the actions of their tradesperson.
The flooring is approximately five years old which is half of its expected life span. I accept the owners’ undertaking that they will be replacing the flooring shortly and I make the order on that basis. Before this order is enforced therefore, steps to arrange the replacement should be in place.
Having assessed the situation carefully, I find it just for the tenants to contribute $1,000 towards the replacement. I consider this amount reasonable 1 taking into account depreciation but also that as the work has not yet been undertaken, the owner is free to obtain alternative quotes before they chose a supplier.
Turning to the wood flooring. Whilst the evidence does depict that the floor generally is due for a sand and treatment, there is significant denting under the dining room table. The landlord had taken protective measures by placing rubber and felt on the bottom of the furniture. Some of these have become dislodged over the course of the tenancy.
Accordingly, I find that the tenants should contribute to the treatment cost as the dents exceed fair wear and tear. However, as the landlord cannot recall when the floor was previously treated, it is clearly overdue for such work. In those circumstances I find it just 2 that the tenants contribute $150 towards this cost.

Should other orders be made?

Because [The landlord/s] have substantially succeeded with the claim I have reimbursed the filing fee.
Both parties seek suppression orders. Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly 1 See section 85 RTA 2 See section 85 RTA or substantially” successful and allows discretion whilst weighing up the parties’ interests and the public interest.
The landlord was substantially successful, so I approve their application for suppression.
The tenants were also successful to an extent in defending the full claims. Accordingly, I also consider it just to allow their claim for suppression.
The bond is to be released to pay part of the debt. I note that the parties have agreed to discuss the final amount owing to be paid off in instalments.

Claims and awards in Tenancy Tribunal application 5260820 — net $584.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: vinyl	$1,000.00	Repairs: vinyl
Repairs: wood flooring	$150.00	Repairs: wood flooring
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$584.85
Total payable by Tenant to Landlord	$584.85

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
[The tenant/s] must pay [The landlord/s] $3,493.23 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $592.15 ([Bond number suppressed]) to [The landlord/s] immediately.

Reasons

Both parties attended the hearing which was held by audio visual link. [Property manager representative] represented the property management company and [the landlord/s] also attended.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
As applicant, the onus of proof lies with the landlord. It is the civil standard of “balance of probabilities” which is, put another way, what is more likely than not. The leading District Court decision on the issue of evidence at Tenancy Tribunal hearings is Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
I consider each of the claims individually below bearing in mind the standard of proof.

Are the tenants responsible for rubbish removal costs?

The landlord claims $148.38 which was the disposal costs of items they say belonged to the tenants that were left at the property following the end of the tenancy.
Section 40(1)(e)(ii) of the Residential Tenancies Act 1986 (RTA) states that at the end of the tenancy the tenant must leave the premises reasonably clean and tidy and remove all rubbish.
[The tenant/s] say they took all their belongings when they left and during the six subsequent visits undertaken at the request of the property manager. They say the wood and lawnmower left in the shed were in the property at the beginning of the tenancy. They questioned the cost that was incurred and that the work was not done until February whereas they vacated in November.
[The landlord/s]’s evidence is that she had to dispose of pellet wood, a lawnmower a tyre and a potty. It took her until February to do so she says because of the summer holidays. She did not charge for her time but just the disposal costs which she says solely relates to property the tenants left in the tenancy which were not present at the beginning.
There is no pictorial evidence that the shed was clear and empty at the commencement of the tenancy. I therefore do not find established in evidence that the lawnmower and miscellaneous wood were not present in the property at the beginning of the tenancy.
The remaining items in dispute the tenants say they removed, [the landlord/s] says they did not.
[The landlord/s] gave direct evidence that she removed the belongings that can be seen in the photos and the cost has been established by invoice. The photos were however taken prior to the tenants returning to the property to address post tenancy matters, and the items were removed three months after the end of the tenancy.
The tenants did return to the property at the request of the property manager a number of times. On that basis I find it more likely than not that they did remove the items requested of them. Given the property manager was closely managing the post tenancy situation I find it unlikely she allowed further items to remain.
Accordingly, this claim has not been established in evidence and therefore must be dismissed.

Are the tenants responsible for damage to the premises?

The landlord seeks compensation for having to repair and replace two areas of the property’s flooring.
Firstly, downstairs there are vinyl planking boards that have been scratched and ostensibly moved around. [The landlord/s] says the flooring was in average condition when the tenancy started but with no scratches. The flooring had been installed approximately five years earlier.
[The tenant/s] accept there were some scratches they think occurred from moving their couch. They had a trade look at it to see if boards could be replaced. His advice was that it would not be possible as the boards would look different. His work was not supervised by [the tenant/s] and it appears he may have moved some of the boards around in an attempt to address the issue. He did not charge for his visit and [the tenant/s] were not aware of what he had done until the hearing when [the landlord/s] provided a video of the area.
The claim is for $2,000 which is the insurance excess to replace the flooring in the area. The actual cost will be $3,162.50. The owners have not yet arranged the repair due to a lack of available funds but they are residing there.
[The tenant/s] accept they scratched the floor whilst moving their couch and are open to a reasonable payment in compensation but not the full amount sought. Agreement could not be reached on an amount at the hearing.
Secondly there was significant scratching of the timber flooring in the dining room. The landlord is claiming reimbursement of the $747.50 it will cost to have the area sanded and coated.
[The landlord/s] says the tenants were careless in their use of the dining room as the rubber stoppers on the chairs were dislodged and the marks are consistent with leaning back in the chairs.
[The tenant/s] say the entire area of the wood flooring is dented and scratched because of the nature of the wood. They cleaned it with a special product designed for such surfaces and were not negligent in their use. The law
To be successful in such a claim, 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.
Fair wear and tear is the expected toll taken on a house that comes from usual living. It is manifest that when a landlord rents premises to a tenant, that the tenants will live in the dwelling, and in the process cause some wear and tear.
Carelessness is not defined in the RTA, but its usual meaning is the lack of care, negligence or lack of forethought. It can also be defined as “heedless or thoughtless” and can cover a situation of inadvertent lack of care.
The standard of care is the standard of an ordinary careful person, so it is an objective test. An ordinary careful person is not expected to take precautions against every foreseeable risk, but only against those risks that are reasonably likely to happen. Furthermore, the damage must be of a kind that can fairly and reasonably be considered as arising naturally from the breach or a probable result of the breach.
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. The landlord’s insurance excess is $2,000.
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.
Betterment and depreciation must also be considered. 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, the Tribunal will take into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Discussion
The photos and video establish considerable scratching to the vinyl planking and that boards have been moved around in an unprofessional way. I find that the scratching does exceed fair wear and tear as this was a short seven-month tenancy. The board installation has also been damaged in their relocation.
Accordingly, I find the tenants liable to make a contribution to the repair. They are liable for the actions of their tradesperson.
The flooring is approximately five years old which is half of its expected life span. I accept the owners’ undertaking that they will be replacing the flooring shortly and I make the order on that basis. Before this order is enforced therefore, steps to arrange the replacement should be in place.
Having assessed the situation carefully, I find it just for the tenants to contribute $1,000 towards the replacement. I consider this amount reasonable 1 taking into account depreciation but also that as the work has not yet been undertaken, the owner is free to obtain alternative quotes before they chose a supplier.
Turning to the wood flooring. Whilst the evidence does depict that the floor generally is due for a sand and treatment, there is significant denting under the dining room table. The landlord had taken protective measures by placing rubber and felt on the bottom of the furniture. Some of these have become dislodged over the course of the tenancy.
Accordingly, I find that the tenants should contribute to the treatment cost as the dents exceed fair wear and tear. However, as the landlord cannot recall when the floor was previously treated, it is clearly overdue for such work. In those circumstances I find it just 2 that the tenants contribute $150 towards this cost.

Should other orders be made?

Because [The landlord/s] have substantially succeeded with the claim I have reimbursed the filing fee.
Both parties seek suppression orders. Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly 1 See section 85 RTA 2 See section 85 RTA or substantially” successful and allows discretion whilst weighing up the parties’ interests and the public interest.
The landlord was substantially successful, so I approve their application for suppression.
The tenants were also successful to an extent in defending the full claims. Accordingly, I also consider it just to allow their claim for suppression.
The bond is to be released to pay part of the debt. I note that the parties have agreed to discuss the final amount owing to be paid off in instalments.

Tenancy Tribunal case 5260820 — Property damage

At a glance

Tenancy Tribunal case 5260820 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

Are the tenants responsible for rubbish removal costs?

Are the tenants responsible for damage to the premises?

Should other orders be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Are the tenants responsible for rubbish removal costs?

Are the tenants responsible for damage to the premises?

Should other orders be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions