What was Tenancy Tribunal case 5483426 about?

The tribunal order states: [The tenant/s] and [The tenant/s] to pay Barfoot & Thompson Limited As

How much money was awarded in case 5483426?

Filing Fee: $28.00 awarded to tenant; Property Damage: $550.00 awarded to landlord

What type of tenancy dispute was case 5483426?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5483426?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13921110-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5483426 about?

The tribunal order states: [The tenant/s] and [The tenant/s] to pay Barfoot & Thompson Limited As

How much money was awarded in case 5483426?

Filing Fee: $28.00 awarded to tenant; Property Damage: $550.00 awarded to landlord

What type of tenancy dispute was case 5483426?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5483426?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13921110-Tenancy_Tribunal_Order.pdf.

35 Carder Court, Hobsonville, Auckland 0618 Tenancy Tribunal Case 5483426 — Property damage

Claims and awards in Tenancy Tribunal application 5483426 — net $522.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: cooktop (insurance excess	$550.00		Repairs: cooktop (insurance excess
Filing fee reimbursement		$28.00	Filing fee reimbursement
Total award	$550.00	$28.00
Net award	$522.00
Bond	$2,800.00
Total payable by Tenant to Landlord	$522.00

Claims and awards in Tenancy Tribunal application 5483426 — net $522.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: cooktop (insurance excess	$550.00		Repairs: cooktop (insurance excess
Filing fee reimbursement		$28.00	Filing fee reimbursement
Total award	$550.00	$28.00
Net award	$522.00
Bond	$2,800.00
Total payable by Tenant to Landlord	$522.00

Order

[The tenant/s] and [The tenant/s] to pay Barfoot & Thompson Limited As The Agent For Mcewan, [The landlord/s] $522.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,800.00 (BN-10045358) immediately apportioned as follows: Barfoot & Thompson Limited As The Agent For Mcewan, [The landlord/s]: $522.00 [The tenant/s] and [The tenant/s]: $2,278.00

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.
The tenants refuted the landlord’s claims and applied for full refund of their 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. General legal principles in relation to the award of compensation or exemplary damages
The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. Awards of compensation in the Tribunal are generally modest. When awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach. Factors such as the loss of amenity, stress and inconvenience suffered by the party that has proven the breach are considered when deciding the quantum of any compensation awarded.

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 is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlord claims the tenant did not leave the premises reasonably clean and tidy. Specifically, the oven, dishwasher and carpet.
Section 40(1)(e)(iii) of the RTA confirms that on termination of the tenancy, the tenant 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) 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. 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”.
The tenants provided evidence that they hired a commercial cleaner to clean the carpet and that this cleaner spot treated the carpet stains complained of by the landlord, post the exit inspection. The tenants stated that had the landlord raised this concern with them at the exit inspection they could have asked the commercial cleaner to return to undertake further stain removal treatments. The landlord did not raise any issues at that time, so the tenants were under a reasonable belief the commercial cleaner had completed the job to the landlord’s satisfaction. Additionally, the tenants cleaned the oven themselves to a standard that was possible after 9 years of use. They note the oven was replaced prior to the owner putting the house up for sale, as was the carpet. The exit inspection photographs show the dishwasher was reasonably clean and tidy, but for some areas around the edges of the door and in the adjacent kitchen cabinet. The tenants provided evidence they routinely ran a cleaning agent through the dishwasher, wiped it out and cleaned the traps. They say they used it regularly and so this would have also kept the dishwasher clean.
I accept that the tenants had hired a commercial cleaner to undertake the exit clean and that they had thoroughly cleaned the oven, but it still contained some stubborn black stains that the landlord obviously also could not remove as the oven was replaced before the house was marketed for sale. I also accept that the dishwasher was reasonably clean and tidy, but not perfect or to a standard that was ready for the house to be sold.
Additionally, the landlord has not provided any invoice or receipt to support this claim. The landlord says it paid cash for this work and changed the work out at what it sees as a market rate. Without proof of payment of the $700.00 sought, I cannot compensate the landlord for a loss it has not proven it incurred, even if its evidence had proven its claims.
The landlord’s claims for compensation for cleaning costs is dismissed for lack of evidence proving its claims and because the tenants have provided evidence which disproves liability for these costs, as the premise was at standard that an average, reasonable bystander would consider “reasonably tidy” and there is no evidence of the landlord having suffered a loss.

Are the tenants 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 produced evidence it says proves the following damage was caused during the tenancy because of the tenants’ careless acts or omissions: a. Scuff marks on the walls that required plastering and repainting; b. Chips on the cook top that required replacement; c. Chip on the corner of the kitchen island cabinet; d. Lifting laminate on the bottom of the kitchen island cabinet; and e. Water damage to the toilet cabinet.
The landlord says this damage is more than fair wear and tear.
The tenants refute they are responsible for this damage because: a. The marks on the walls have not been proven by the landlord in its exit inspection photographs and the few marks raised during the hearing are all fair wear and tear; b. The chip and lifting laminate on the kitchen island cabinet are fair wear and tear; c. The water damage to the toilet cabinet is fair wear and tear, they regularly wiped the cabinet down when water pooled on the cabinet, but it was in a high use area and the materials it was made of was inferior and susceptible to water damage even with the best care in the world. The tenants have two children and they did not wipe the vanity down after each use but their parents wiped the vanity down every day as soon as any pools of water were spotted; d. The cooktop damage was accidental, reported to the landlord at the time the accident occurred, was not remedied at the time and the cooktop also had other chips that were fair wear and tear.
I am satisfied that the evidence produced by the landlord has failed to prove on the balance of probabilities that the damage to the two cabinets and the marks on the walls were the result of careless acts or omissions by the tenants.
The wall marks pointed out in the exit inspection photographs all appear to be fair wear and tear and none look to be from careless damage. These marks are small, behind appliances such as in the laundry and none look like they are from nails or hooks or any other thing the tenants have placed on the walls during the tenancy. None of these marks were pointed out to the tenants as being of concern during the exit inspection nor were they told that these specific marks were being viewed as anything other than fair wear and tear over a nine plus year tenancy, and it should have been.
The small chip on the corner of the kitchen cabinet and the lifting laminate also appear to be fair, wear and tear. Again, this damage was not pointed out to the tenants as being of concern during the exit inspection nor were they told that this damage was being viewed as anything other than fair wear and tear over a nine plus year tenancy, and it should have been.
The water damage to the toilet cabinet again was not pointed out to the tenants as being of concern during the exit inspection, nor were they told that this damage was being viewed as anything other than fair wear and tear over a nine plus year tenancy, and it should have been. This gradual damage was not recorded in the routine property inspections during the tenancy, that occurred every three months, except at times during the COVID-19 pandemic. The landlord argued that the tenants should have wiped down the vanity each time it was used to keep the surfaces dry and clean as this is considered part of routine maintenance that stops water pooling on or around a vanity seeping into the wood or laminate over time, causing it to swell or rot.
I accept the tenants did regularly wipe down the vanity to keep the surfaces dry and clean as part of their routine maintenance to stop water pooling on or around a vanity seeping into the wood or laminate over time, causing it to swell or rot. They may not have wiped it every time, but their evidence proves they were proactive in doing this regularly as they were aware of the poorly constructed particle board and laminate cabinet being susceptible to water damage. The tenants should have been able to wash their hands without wiping the vanity every time. Fair wear and tear is the natural and gradual deterioration of a property that occurs through normal, everyday use. For example, a vanity wearing out over many years of normal use, or seals naturally leaking due to age, not water damage that could have been avoided by the wiping down of the pooled water after use on a small particle board vanity. I accept that these types of particle board and laminate cabinets are more susceptible to this type of water damage, due to the small size of the cabinet below the basin and water splashes having no other place to go but on the side of the cabinet or on the top of the draw or cupboard underneath. I am satisfied the evidence proves that this gradual water damage happened overtime and was not noticed by either the tenants or the landlord during the tenancy, nor by the property manager during the exit inspection. I find this damage to be gradual process damage that resulted from the inferior wood and laminate the cabinet was made of not being fit for purpose rather than from any careless acts or omissions by the tenants.
I find that the female tenant did cause the chip to the cook top, albeit because of an accident that consisted of an oil bottle slipping out of the tenant’s hands when she was cooking. Fair wear and tear is a natural deterioration of the cooktop. I find that this damage is not fair wear and tear. Tenants are not liable for truly unexpected, unpreventable accidents that are out of their control (e.g. being startled by an animal causing something to drop). However, in this case, it is reasonably foreseeable that an oil bottle can be slippery and may slip out of a tenant’s hands if not wiped clean before taking it near the cooktop. There was no evidence that the tenant tripped, or the bottle slipped out of the tenant’s hands due to a sudden, unforeseeable event. Therefore, I find that while this damage is accidental, it is also deemed to be careless, and the tenants should be liable for the insurance excess for the replacement of this cook top.
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. Reimbursement of filing fee
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 tenants have substantially succeeded with their claim, I must reimburse the filing fee.
Because Barfoot & Thompson Limited As The Agent For Mcewan, [The landlord/s] have not wholly or substantially succeeded with their claim I dismiss their claim for reimbursement of the filing fee.

Tenancy Tribunal case 5483426 — Property damage at 35 Carder Court, Hobsonville, Auckland 0618

At a glance

Tenancy Tribunal case 5483426 — Property damage at 35 Carder Court, Hobsonville, Auckland 0618

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

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

Are the tenants 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

RELEVANT LEGAL CONSIDERATIONS

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

Are the tenants responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions