What was Tenancy Tribunal case 5403853 about?

The tribunal order states: Nivada Walsh-Cooper to pay Jesse Booker $1,326.17 from the bond,

How much money was awarded in case 5403853?

Cleaning: $50.00 awarded to landlord; Filing Fee: $28.00 awarded to landlord; Property Damage: $1,048.17 awarded to landlord; Rubbish Removal: $200.00 awarded to landlord

What type of tenancy dispute was case 5403853?

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

Where can I read the official tribunal order for case 5403853?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13401928-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5403853 about?

The tribunal order states: Nivada Walsh-Cooper to pay Jesse Booker $1,326.17 from the bond,

How much money was awarded in case 5403853?

Cleaning: $50.00 awarded to landlord; Filing Fee: $28.00 awarded to landlord; Property Damage: $1,048.17 awarded to landlord; Rubbish Removal: $200.00 awarded to landlord

What type of tenancy dispute was case 5403853?

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

Where can I read the official tribunal order for case 5403853?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13401928-Tenancy_Tribunal_Order.pdf.

24A Great South Road, Ngaruawahia, Ngaruawahia 3720 Tenancy Tribunal Case 5403853 — Property damage

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Reasons

Claims and awards in Tenancy Tribunal application 5403853 — net $1,326.17 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet Cleaning: Stain removal (provisional	$50.00	Carpet Cleaning: Stain removal (provisional
Repairs	$1,048.17	Repairs
Rubbish removal: Labour and removal	$200.00	Rubbish removal: Labour and removal
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$1,326.17
Bond	$2,200.00
Total payable by Tenant to Landlord	$1,326.17

Both parties attended the hearing.

The landlord has applied for compensation from the bond for repairs and rubbish removal.

A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.

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.

The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] 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.”

In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered where appropriate.

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 tenant did not remove all rubbish.

A section of carpet was stained.

Both claims were accepted by the tenant, although the dog excrement evidenced after vacate was disputed.

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 carpet stain has not been treated. An on-line quote from Rug Doctor was provided – totalling $77.64. There was no subsequent invoice.

Given the tenant acceptance of the stain I have made a general award of $50.00 towards the carpet stain and any subsequent removal.

The rubbish removal claim was $337.14. This was based on four hours labour at $45.00 per hour and quotes for dumping costs and a trailer hire. Neither related cost was evidenced as incurred via an appropriate invoice.

I raised the issue of the landlord hourly rate as claimed at the hearing. The landlord explained the basis of setting that rate as claimed but I do not consider the circumstances such that a more modest hourly rate for a DIY exercise of $35.00 should not apply. I have accepted four hours (based on the two people at two hours) at $35.00, totalling a labour costs of $140.00 to be awarded. I also had some concerns with the volume/weight of rubbish disposal claimed verses the photos provided. I also require evidence of a loss such as an actual invoiced trailer hire to confirm the full amounts as sought. Having considered the evidence provided, I have awarded a general sum of $60.00 towards any non-labour costs incurred.

I award $200.00 towards the cost of rubbish removal.

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.

Fair wear and tear has been described as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant.

In Nixon v Geal-Otter DC North Shore, 30 January 1996, [1996] RTHNZ 2, 1996 WL 35049225, Judge Thorburn stated: Adjudicators and the Court must be careful to recognise that in any tenancy there will be a deterioration of condition because of fair wear and tear. It can be no other way. Mere use of premises will by the law of inevitability produce a deterioration of condition.

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 damage. See section 49B(3A)(a) RTA.

The following damage was caused during the tenancy: a. Wall damage – dents and partially repaired hole that required finishing. b. Curtain rails – some bent with one bracket falling out c. Toilet seat – loose and requiring new lugs/tightening d. Toilet roll holder – detached from wall. e. Garage workbench top (“benchtop”) f. Vinyl floor tears

A single invoice for $1,098.17, with tasks detailed, was paid by the landlord. This was provided and reviewed.

The tenant accepted the damage as listed and invoiced but disputed liability for the toilet seat and roll holder repair, claimed these were fair wear and tear. While he had also challenged the benchtop, he accepted the damage occurred during the tenancy. The landlord adopted a low-cost, practical solution to address this.

The photos of the toilet seat and roll holder establish the need for the subsequent repairs. The question of liability less so. I have considered the evidence and submissions regarding wear and tear. I have reduced the full invoice amount by $50.00 to reflect this contributory aspect. I would have considered a further reduction but the failure of the tenant to advise the landlord in a timely manner diminishes any full absolution of the costs incurred.

The amounts ordered are proved. Filing fee

Because Jesse Booker has substantially succeeded with the claim I have reimbursed the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 5403853 — net $1,326.17 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet Cleaning: Stain removal (provisional	$50.00	Carpet Cleaning: Stain removal (provisional
Repairs	$1,048.17	Repairs
Rubbish removal: Labour and removal	$200.00	Rubbish removal: Labour and removal
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$1,326.17
Bond	$2,200.00
Total payable by Tenant to Landlord	$1,326.17

Both parties attended the hearing.

The landlord has applied for compensation from the bond for repairs and rubbish removal.

In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered where appropriate.

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

The tenant did not remove all rubbish.

A section of carpet was stained.

Both claims were accepted by the tenant, although the dog excrement evidenced after vacate was disputed.

The carpet stain has not been treated. An on-line quote from Rug Doctor was provided – totalling $77.64. There was no subsequent invoice.

Given the tenant acceptance of the stain I have made a general award of $50.00 towards the carpet stain and any subsequent removal.

I award $200.00 towards the cost of rubbish removal.

Is the tenant responsible for the damage to the premises?

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 damage. See section 49B(3A)(a) RTA.

A single invoice for $1,098.17, with tasks detailed, was paid by the landlord. This was provided and reviewed.

The amounts ordered are proved. Filing fee

Because Jesse Booker has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 5403853 — Property damage at 24A Great South Road, Ngaruawahia, Ngaruawahia 3720

At a glance

Tenancy Tribunal case 5403853 — Property damage at 24A Great South Road, Ngaruawahia, Ngaruawahia 3720

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?

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?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions