What was Tenancy Tribunal case 5303995 about?

The tribunal order states: [The party] and [The party] to pay Sunnyville Property Management Nz Limited As

How much money was awarded in case 5303995?

Filing Fee: $28.00 awarded to landlord; Remove Wall Hooks: $138.00 awarded to landlord; Property Damage: $150.00 awarded to landlord

What type of tenancy dispute was case 5303995?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5303995?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12565485-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5303995 about?

The tribunal order states: [The party] and [The party] to pay Sunnyville Property Management Nz Limited As

How much money was awarded in case 5303995?

Filing Fee: $28.00 awarded to landlord; Remove Wall Hooks: $138.00 awarded to landlord; Property Damage: $150.00 awarded to landlord

What type of tenancy dispute was case 5303995?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5303995?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12565485-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2308, 8 Airedale Street, Auckland Central, Tenancy Tribunal Case 5303995 — Property damage

Claims and awards in Tenancy Tribunal application 5303995 — net $316.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
remove wall hooks	$138.00	remove wall hooks
Repairs: Wall damage (accelerated depreciation	$150.00	Repairs: Wall damage (accelerated depreciation
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$316.00
Bond	$1,640.00
Total payable by Tenant to Landlord	$316.00

Order

[The party] and [The party] to pay Sunnyville Property Management Nz Limited As Agent For Kim Ho $316.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,640.00 (6087034-015) immediately apportioned as follows: Sunnyville Property Management Nz Limited As Agent For Kim Ho: $316.00 [The party] and [The party]: $1,324.00

Reasons

Both parties attended the hearing, conducted via video conference. The landlord was joined by phone after failing to enter the conference.
The landlord has applied for compensation from the bond following the end of the tenancy.
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the landlord must establish that what it is claiming is more likely than not.
The term “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 more likely. 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. It is not a question of a party not being “right” or not telling the truth, the sole issue is whether they have on the evidence presented, proven that their claim is more likely than not.
When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
This was a long tenancy of almost five years.

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.
The statutory requirement is that tenants leave the premises in a reasonably clean and reasonably tidy condition. The RTA allows for fair wear and tear. A tenant is not required to leave a property spotless or even in a condition where the landlord would be happy to rent it out to a new tenant. What is required is that premises including the stove and bathroom fittings are cleaned and all personal items removed. A tenant is not required to rigorously clean all walls, ceilings lightshades, skirtings, behind appliances or the outside of the house. It is common that a landlord wishes to clean to this “extra” level so that they can re-tenant or sell. However, that is a business decision that a landlord makes at their cost.
In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.
The landlord claims the tenants failed to remove wall hooks, nor clean the shower and oven glass to a reasonable standard, being the entry condition.
The tenants accepted they had failed to remove the hooks and accepted the claimed cost of $138.00 for this to be done. This is awarded.
They disputed the balance of $92.00 sought for the shower and oven glass cleaning. Having considered the evidence and submissions I agree that the condition of each was reasonable at exit. The claim for $92.00 is dismissed.

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.
“Fair wear” is deterioration caused by the reasonable use of the premises. “Fair tear” is deterioration caused by the ordinary operation of the forces of nature. Importantly, intentional or careless damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.
The following damage was caused during the tenancy: Wall damage from hook removal.
The landlord produced photos that showed some hooks, when removed, also removed the wall finish (paint). Any damage is localised. A quote for $345.00 to repaint those areas was provided but the repairs have not been made. A new tenancy has been in place for over ten weeks with the walls still as evidenced. No tenant permission was sought for the fixtures placement (see s 42 RTA) and no removal of them by the tenants before the end of the tenancy occurred. The tenancy agreement required landlord permission be sought and granted prior (Clause 25).
I accept some local damage occurred in two areas that is more than fair wear and tear. A challenge is establishing what the loss is, even before depreciation is considered. I consider it more appropriate to deal with the damage as accelerated depreciation that will require the landlord to repaint the room earlier than might otherwise have been anticipated.
I have awarded $100.00 as tenant contribution to the premature cost of repainting, as will likely be incurred in the future. Splash back damage
The splashback behind the stovetop is an acrylic panel. Any more specific details as to its rating or suitability for such a surface exposed to heating, impact and moisture from expected activities when cooking were unavailable. Its age is considered similar to the walls, being no less than five years.
The working area is tight and the tenants highlighted the less than recommended distance from the stovetop to wall. I also have some concerns that the wall itself was less than suitable for likely exposure to heat, impact, and moisture/cooking residues – all risks for which a splashback is installed.
But for the failure of the tenants to advise the landlord of the damage when it started to appear, this claim would have been dismissed. Without that, I consider the landlord was not provided an opportunity to attend to it in a timelier manner. Such tenant notice may have enabled landlord action to reduce the damage or allow a repair/solution to mitigate future damage.
That said, the splashback remains in place and in the same, if not worse condition. The estimated cost of repair is claimed as $557.75. Favouring it as more than likely reasonable use of the stovetop caused the damage, therefore making it a fair wear and tear cost, I award $50.00 towards the eventual replacement or repair of the splashback, recognising earlier tenant advice to the landlord, if acted on, may have avoided the later repair cost as indicated in the estimate. Depreciation and betterment
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 wall at the start of the tenancy and their likely useful lifespan, noting the condition at exit remains “as is” today under a new tenancy. Filing fee
Because Sunnyville Property Management Nz Limited As Agent For Kim Ho has substantially succeeded with the claim, or put another way, they needed to make the claim to receive the awards as made, I have reimbursed the filing fee. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord did requested suppression. The tenants did request this at the hearing. Having considered the application and circumstances, I see no compelling reason to alter the assumed public order. They were good tenants with just a few disputed claims at the end of a long tenancy. They were justified in some of their stance. I do not consider tenant name suppression should be ordered here.

Claims and awards in Tenancy Tribunal application 5303995 — net $316.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
remove wall hooks	$138.00	remove wall hooks
Repairs: Wall damage (accelerated depreciation	$150.00	Repairs: Wall damage (accelerated depreciation
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$316.00
Bond	$1,640.00
Total payable by Tenant to Landlord	$316.00

Order

[The party] and [The party] to pay Sunnyville Property Management Nz Limited As Agent For Kim Ho $316.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,640.00 (6087034-015) immediately apportioned as follows: Sunnyville Property Management Nz Limited As Agent For Kim Ho: $316.00 [The party] and [The party]: $1,324.00

Reasons

Both parties attended the hearing, conducted via video conference. The landlord was joined by phone after failing to enter the conference.
The landlord has applied for compensation from the bond following the end of the tenancy.
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the landlord must establish that what it is claiming is more likely than not.
The term “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 more likely. 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. It is not a question of a party not being “right” or not telling the truth, the sole issue is whether they have on the evidence presented, proven that their claim is more likely than not.
When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
This was a long tenancy of almost five years.

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.
The statutory requirement is that tenants leave the premises in a reasonably clean and reasonably tidy condition. The RTA allows for fair wear and tear. A tenant is not required to leave a property spotless or even in a condition where the landlord would be happy to rent it out to a new tenant. What is required is that premises including the stove and bathroom fittings are cleaned and all personal items removed. A tenant is not required to rigorously clean all walls, ceilings lightshades, skirtings, behind appliances or the outside of the house. It is common that a landlord wishes to clean to this “extra” level so that they can re-tenant or sell. However, that is a business decision that a landlord makes at their cost.
In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.
The landlord claims the tenants failed to remove wall hooks, nor clean the shower and oven glass to a reasonable standard, being the entry condition.
The tenants accepted they had failed to remove the hooks and accepted the claimed cost of $138.00 for this to be done. This is awarded.
They disputed the balance of $92.00 sought for the shower and oven glass cleaning. Having considered the evidence and submissions I agree that the condition of each was reasonable at exit. The claim for $92.00 is dismissed.

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.
“Fair wear” is deterioration caused by the reasonable use of the premises. “Fair tear” is deterioration caused by the ordinary operation of the forces of nature. Importantly, intentional or careless damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.
The following damage was caused during the tenancy: Wall damage from hook removal.
The landlord produced photos that showed some hooks, when removed, also removed the wall finish (paint). Any damage is localised. A quote for $345.00 to repaint those areas was provided but the repairs have not been made. A new tenancy has been in place for over ten weeks with the walls still as evidenced. No tenant permission was sought for the fixtures placement (see s 42 RTA) and no removal of them by the tenants before the end of the tenancy occurred. The tenancy agreement required landlord permission be sought and granted prior (Clause 25).
I accept some local damage occurred in two areas that is more than fair wear and tear. A challenge is establishing what the loss is, even before depreciation is considered. I consider it more appropriate to deal with the damage as accelerated depreciation that will require the landlord to repaint the room earlier than might otherwise have been anticipated.
I have awarded $100.00 as tenant contribution to the premature cost of repainting, as will likely be incurred in the future. Splash back damage
The splashback behind the stovetop is an acrylic panel. Any more specific details as to its rating or suitability for such a surface exposed to heating, impact and moisture from expected activities when cooking were unavailable. Its age is considered similar to the walls, being no less than five years.
The working area is tight and the tenants highlighted the less than recommended distance from the stovetop to wall. I also have some concerns that the wall itself was less than suitable for likely exposure to heat, impact, and moisture/cooking residues – all risks for which a splashback is installed.
But for the failure of the tenants to advise the landlord of the damage when it started to appear, this claim would have been dismissed. Without that, I consider the landlord was not provided an opportunity to attend to it in a timelier manner. Such tenant notice may have enabled landlord action to reduce the damage or allow a repair/solution to mitigate future damage.
That said, the splashback remains in place and in the same, if not worse condition. The estimated cost of repair is claimed as $557.75. Favouring it as more than likely reasonable use of the stovetop caused the damage, therefore making it a fair wear and tear cost, I award $50.00 towards the eventual replacement or repair of the splashback, recognising earlier tenant advice to the landlord, if acted on, may have avoided the later repair cost as indicated in the estimate. Depreciation and betterment
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 wall at the start of the tenancy and their likely useful lifespan, noting the condition at exit remains “as is” today under a new tenancy. Filing fee
Because Sunnyville Property Management Nz Limited As Agent For Kim Ho has substantially succeeded with the claim, or put another way, they needed to make the claim to receive the awards as made, I have reimbursed the filing fee. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord did requested suppression. The tenants did request this at the hearing. Having considered the application and circumstances, I see no compelling reason to alter the assumed public order. They were good tenants with just a few disputed claims at the end of a long tenancy. They were justified in some of their stance. I do not consider tenant name suppression should be ordered here.

Tenancy Tribunal case 5303995 — Property damage at Unit/Flat 2308, 8 Airedale Street, Auckland Central,

At a glance

Tenancy Tribunal case 5303995 — Property damage at Unit/Flat 2308, 8 Airedale Street, Auckland Central,

At a glance

Award balance

Claims & awards

Dismissed claims

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?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

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?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions