What was Tenancy Tribunal case 5444549 about?

The tribunal order states: Nicholas Reid must pay Rhianne and Aaron Phillips $1,300 from the bond,

How much money was awarded in case 5444549?

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 5444549?

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

Where can I read the official tribunal order for case 5444549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13515021-Tribunal_Order.pdf.

What was Tenancy Tribunal case 5444549 about?

The tribunal order states: Nicholas Reid must pay Rhianne and Aaron Phillips $1,300 from the bond,

How much money was awarded in case 5444549?

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 5444549?

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

Where can I read the official tribunal order for case 5444549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13515021-Tribunal_Order.pdf.

2898 State Highway 63, Wairau Valley, RD 1, Wairau Valley Tenancy Tribunal Case 5444549 — Property damage

Order

Nicholas Reid must pay Rhianne and Aaron Phillips $1,300 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,300.00 (BN-25076140) to Rhianne and Aaron Phillips immediately.

Reasons

Both parties attended the hearing.
The landlord has applied for compensation and refund of the bond.
The tenant has applied for compensation, exemplary damages and the return of the bond.
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 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.”
Where there are serious allegations, or important matters at stake, then the Tribunal will wish to see a level of supporting evidence befitting the significance of the matters to be adjudicated.
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. Landlord application

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 rangehood required cleaning. This is not disputed and the landlord provided an invoice of $80.00 for the cost of cleaning it. This is awarded.
The tenant did not remove all rubbish. The landlord provided an invoice for $170.00 for outdoor rubbish removal, much of it animal remains. I heard from both parties and reviewed the photos as provided. The tenant claims the area used was intended for such use and there were pre-existing debris. The landlord denies this use was ever so advised, nor that any debris were pre- existing. I do not find the evidence lends itself to full tenant liability but there is evidence, especially of animal remains, that required removal. I have awarded $85.00 towards the invoiced cost. The balance remains with the landlord.
Carpet cleaning for stain removal was required in the living room. The cost of this was $296.01. The photos evidenced the need for the cleaning. This is awarded.
The amounts ordered are 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 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 following damage was caused during the tenancy:
Dog run fencing. The tenant added a finer mesh wire to existing deer fencing. This was attached by numerous cable ties. The landlord sought $516.49 for the replacement of the fencing, claiming the tenants had keep pigs in there for a period, as well as dogs, such that the fence required replacement. I have reviewed the photos and the respective submissions and find the tenants liable for the likely cost of reinstating the fence to the prior condition. That would require the removal of the fixings and netting as added. I have allowed $92.50, being $40 for disposal and $52.50 labour, based on 1.5 hours at the nominated rate of $35.00 per hour.
Bedroom carpet. There was a pink stain made during the tenancy that was aggressively but unsuccessfully attended to by the tenants. The landlord lodged a successful insurance claim after stain removal failed. They sought the $1000.00 excess as compensation. The carpet is some three years old now. The damage was careless damage that the tenants remain liable for. The actual replacement cost was $1,592.01. Applying an eight-year economic life reduces the current value to $995.01. In addition, the insurer is covering the $296.01, being the cost of the initial stain removal attempt prior to the carpet being written off. The alternative total to the excess, being the actual loss, is $1,291.02. Therefore, the excess of $1,000.00 is the lower of the two options and that is awarded.
The damage in both claims above is more than fair wear and tear, and the tenants have not disproved liability for the damage.
The amounts ordered are proved.
I dismiss the landlord claim for the bath piping repair. The landlord has not been able to establish the cause of the post-tenancy leak, nor that it was due to any tenant careless or intentional action. That means the cost of repair must remain with the landlord.
I have taken into account betterment and depreciation in the carpet replacement award. 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 items at the start of the tenancy and their likely useful lifespan. Tenant application

Was the bond lodged?

The tenants claim the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received (see s 19(1) Residential Tenancies Act 1986). This applies whether the bond is paid in part or whole.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 (see s 19(2) and Schedule 1A RTA.
A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373).
The landlord acknowledged the failure and pointed to a prompt lodgement once the tenant raised the claim.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (see section 109(3) RTA).
I consider the landlord sought have been aware of the requirement and exemplary damages should follow. I this instance, there has been minimal impact on the tenants but the strong public interest in a function bond lodgement process justified an order, but at the lower end. I award the tenants $200.00 exemplary damages for the landlord failure to lodge the bond as required.

Did the landlord fail to meet Health Homes requirements?

The landlord attended to HH requirements pre-tenancy. This was evidenced in the legacy foil underfloor insulation left at commencement after replacement.
The tenants claim the landlord failed to meet the ventilation requirement for mechanical extraction from the bathroom.
There was an extractor. The issue was an expected repair to it as it was not working at commencement. The landlord intended for an electrician to attend but unbeknownst to them that did not eventuate. There was no follow up from the tenants during the tenancy regarding the expected visit and I do not consider the landlord intentionally neglected the standard. In determining this I have considered the other compliance efforts of the landlord evident before the tenancy. The lack of intent means no exemplary damages should be awarded and there is no evidence of impact to support an award of compensation in the alternative.

Did the landlord fail to maintain?

It is well settled that, the landlord’s obligation under s 45 Residential Tenancies Act 1986 (RTA) is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be.
The Tribunal must have regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.
Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
The tenants claim that the landlord failed to remedy several repair issues within a reasonable timeframe. I consider each issue in turn.
The non-operational extractor fan. This has been addressed already under the Healthy Homes discussion but I note here the intended repair and lack of any tenant notice or reminder during the tenancy. Based on the other landlord actions, I consider any tenant prompting would have either reminded the landlord, or in the alternative, establish some detrimental impact on the tenants that might given rise to some compensation consideration.
A message at the time from the landlord shows:
Condition at commencement. The tenants did not view the premises as they lived at out of town prior to moving. A family member inspected with positive feedback. The start of the tenancy was also the time of a significant weather event in the region. Expected work of the landlord was delayed by this and some outdoor surface flooding was evident in some photos. Debris from the underfloor insulation removal and reinstallation remained and some cleaning was required. This was raised by the tenants and appears to have been mutually resolved at that time.
Wood burner. The premises had a chipper/wood burner. It was not a primary source of heating. The tenant decided to use it later in the tenancy. The first attempt created a smoke issue. The parties discussed a flue cleaning but it did not occur. It appears the landlord was willing to pay for this but wanted the tenants to arrange it. The landlord stated this was in part due to earlier issues regarding contractor access (skylight) so the thinking was to let the tenants take the lead and manage access.
The actual cause of smoke from the burner was not established and there are a number of possible sources other than the flue being blocked, such as the flue being cold and impacting the draw, wood type or moisture, improper start-up or airflow restrictions. Given that, and the apparent lack of tenant urgency regarding any subsequent use or flue cleaning, I do not find any grounds for compensation.

Did the landlord unlawfully enter the premises?

A landlord may enter a rental property only in specific circumstances and must follow the rules set out in the RTA, specifically s 48. The main situations when a landlord may enter are with the tenant’s consent. Generally, entry without consent requires adequate and appropriate notice unless it is an emergency.
Having considered the respective submissions I have no evidence from the tenants to support as more than likely their claim of any unlawful entry by the landlord.
I have also considered the nature of this rural property with adjourning landlord areas. Even with evidence of some access to the grounds or outbuildings as claimed, I am not certain any claimed entry, if proven, would have been unlawful.
The contractor access to the complete the skylight repair was not notified but I accept this was based on a unilateral decision by him with the expectation of prior notice stated but disregarded. The landlord is not considered liable for that.
The claim is dismissed.

Should the tenants be compensated?

Section 77(2)(n) RTA allows the Tribunal to grant general damages where a landlord or a tenant has breached a provision of the RTA. These damages can include an amount for distress and pain and suffering.
In Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993 (upheld in the District Court decision of Birch v Otautahi Community Housing Trust, CIV-2018-009-002094 [2020] NZDC 17667) sets out the factors that the Tribunal should take into account when making a damages award, being: a. The nature of the breach b. The duration of the breach c. The effect of the breach.
In Nixon v Geal-Otter DC North Shore TT 216/94, 6 December 1995, Judge Thorburn made the following comments on the approach that s 85 requires the Tribunal, and the District Court on appeal, to take in residential tenancy disputes: The long title to the Act includes as part of the philosophy of the Act, expeditious determination of disputes. The Tribunal and the District Court must adopt an approach which protects that philosophy. Section 85 elaborates on the philosophy, requiring jurisdiction to be applied in a manner that is most likely to ensure the fair and expeditious resolution of disputes, and injuncts that disputes should be determined in accordance with general principles of law and substantial merits and justice but not so as to be bound to give effect to strict legal forms or technicalities. There must be an approach that reflects a broad intuitive sense of propriety in the circumstances of each case and recognises the overall impression and sense of fairness and equity. The broadness of this approach imports a recognition of earthy commonsense to resolution which could be marginalised if the Tribunal and courts slavishly applied technically correct legal niceties.
The commencement did not go to plan. The landlord took longer to finish some work and there were legacy results. The tenants clearly communicated the issues but the tone at that time between the two parties was cooperative and some resolution achieved. The landlord did ask for photos from the tenants regarding a claimed need to clean further but these were not provided at the time, not as part of this application.
Any landlord failure at the time was not subsequently pursued and I must balance any such failure with the positives such no cost, early access for the tenants to store items before the tenancy commenced. Given this balancing, I do not consider there are grounds for compensation as claimed. However, given the circumstances, I have awarded a lesser sum of $53.51 as general compensation to the tenants for entry issues they had to manage. The amount is exact as it reflects the additional sum of tenant liability that would be ordered after the bond is released to the landlord, if no compensation order was made.
I note the landlord’s willingness to settle earlier for what has been the same outcome as here. That is coincidental. Filing fee
Both parties have had sufficient success across both applications to leave each to carry their respective cost of filing. 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.
The tenants requested suppression in their application. As they has not been wholly or substantially successful, no suppression is ordered.

Tenancy Tribunal case 5444549 — Property damage at 2898 State Highway 63, Wairau Valley, RD 1, Wairau Valley

Tenancy Tribunal case 5444549 — Property damage at 2898 State Highway 63, Wairau Valley, RD 1, Wairau Valley

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?

Was the bond lodged?

Did the landlord fail to meet Health Homes requirements?

Did the landlord fail to maintain?

Did the landlord unlawfully enter the premises?

Should the tenants be compensated?

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?

Was the bond lodged?

Did the landlord fail to meet Health Homes requirements?

Did the landlord fail to maintain?

Did the landlord unlawfully enter the premises?

Should the tenants be compensated?