What was the outcome of Tenancy Tribunal case 4339261?

The tribunal order states: Taituha McCarthy and Hemi McCarthy must pay Barfoot & Thompson Property

How much money was awarded in case 4339261?

Cleaning: $632.50 awarded to landlord; Loss Of Rent X 5 Weeks: $2,800.00 awarded to landlord; Curtain Rail Straightening: $57.50 awarded to landlord; Labour: $414.00 awarded to landlord; Light Shades Fitting: $138.00 awarded to landlord; Net Curtain Refitting: $20.00 awarded to landlord; Painting: $4,025.00 awarded to landlord; Travel Time: $28.75 awarded to landlord; Wall Holes And Broken Door Frame: $155.25 awarded to landlord; Water Rates: $48.41 awarded to landlord

What type of tenancy dispute was case 4339261?

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

Where can I read the official tribunal order for case 4339261?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10755719-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4339261?

The tribunal order states: Taituha McCarthy and Hemi McCarthy must pay Barfoot & Thompson Property

How much money was awarded in case 4339261?

Cleaning: $632.50 awarded to landlord; Loss Of Rent X 5 Weeks: $2,800.00 awarded to landlord; Curtain Rail Straightening: $57.50 awarded to landlord; Labour: $414.00 awarded to landlord; Light Shades Fitting: $138.00 awarded to landlord; Net Curtain Refitting: $20.00 awarded to landlord; Painting: $4,025.00 awarded to landlord; Travel Time: $28.75 awarded to landlord; Wall Holes And Broken Door Frame: $155.25 awarded to landlord; Water Rates: $48.41 awarded to landlord

What type of tenancy dispute was case 4339261?

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

Where can I read the official tribunal order for case 4339261?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10755719-Tribunal_Order.pdf.

7B Levesque Street, Birkdale, Auckland 0626 Tenancy Tribunal Case 4339261 — Property damage

Claims and awards in Tenancy Tribunal application 4339261 — net $6,219.41 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Water rates	$48.41	Water rates
Repairs: Painting	$4,025.00	Repairs: Painting
Masking and cleaning	$632.50	Masking and cleaning
Repairs: Labour	$414.00	Repairs: Labour
Repairs: Light shades fitting	$138.00	Repairs: Light shades fitting
Repairs: Net curtain refitting	$20.00	Repairs: Net curtain refitting
Repairs: Curtain rail straightening	$57.50	Repairs: Curtain rail straightening
Repairs: Wall holes and broken door frame	$155.25	Repairs: Wall holes and broken door frame
Repairs: Travel time	$28.75	Repairs: Travel time
Loss of rent x 5 weeks	$2,800.00	Loss of rent x 5 weeks
Net award	$6,219.41
Total payable by Tenant to Landlord	$6,219.41

Order

Taituha McCarthy and Hemi McCarthy must pay Barfoot & Thompson Property Management Limited As Agents For Gk Levesque Ltd $6,219.41 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing on 22 nd August 2023, 19 th April 2024, and 19 th July 2024. This order is to be read together with the orders made on 22 nd August 2023, 22 nd April 2024 and 24 th July 2024. 4339261, 44123862
The landlord’s application for water rates, compensation, refund of the bond and loss of rent was heard in full by 19 th April 2024. Reasons were given on the order dated 22 nd April 2024 but no order for payment was made at that stage.
On 19 th July 2024, the tenants tried to respond again to the claims that had been dealt with on 19 th April 2024. The only point that required attention was whether the landlord can claim loss of rent for five weeks as tenant’s liability is capped at four weeks’ rent for any careless damage under section 49B(3) Residential Tenancies Act 1986 (“RTA”).
However, there is no maximum cap for intentional damage. The unfinished plastering patches are not careless damage. They would be classified as intentional damage.
Accordingly, my decision to award five weeks’ loss of rent remains unchanged.
I order the tenant to pay the landlord as per the order made above. Tenant’s cross-application
The tenant made a cross-application regarding the landlord’s failure to maintain and unlawful termination.
Under section 45 RTA, a landlord must provide and maintain the premises in a reasonable state of repair. Specifically, the tenant raised issues with the stairs, the stove and the shower. The tenant said that the premises was not compliant with Healthy Homes Standards (“HHS”).
In relation to the HHS, the landlord provided evidence of an HHS assessment, rangehood installation, draught stopping and insulation installation. I find that there was no breach of HHS.
The outside stairs had warped and had lifted. From the photos, it did not seem critically urgent. The landlord was aware of this from an inspection on 3 rd May 2021. On 18 th May 2021, the landlord made a work order for the stairs to be fixed. It was repaired in July 2021.
I find the 2-month turnaround time between noticing the issue and having it fixed was not unreasonable.
The stove had power issues and did not turn off. It was notified to the landlord on 5 th February 2021. A work order was put in by the landlord on 10 th February 2021 and the landlord ended up replacing the entire stove with a new free- standing stove on 25 th February 2021. I find the turnaround time between the issue being notified and the replacement oven being provided as reasonable.
The tenant sent a photo of the mouldy shower corner to the landlord on 5 th February 2021. On the inspection done on 3 rd May 2021, the landlord noted that the shower had a leak and mould had formed. On 27 th May 2021, a moisture 4339261, 44123863 testing was done but the landlord could not find the result of the moisture testing itself other than that it needed to be attended to.
The landlord issued a 90 days’ notice of termination on 9 th June 2021 for extensive alterations, refurbishments, repairs or redevelopment of the premises to be carried out within 90 days of the termination date of 9 th September 2021.
The shower leak issue was part of the need for extensive alterations, refurbishments, repairs or redevelopment.
Given the age of the building, I find that the landlord may not have realised the extent of the leak when the photo of the mouldy shower corner was sent by the tenant in February 2021.
If the tenant had sent the landlord a 14-day notice to remedy, or further requests for it to be fixed, I may have found that the landlord had failed to reasonably maintain the premises and award exemplary damages. However, I do not find that the three-month of inaction between the landlord being sent the photo and seeing the condition of the shower in person in the May inspection is something that warrants compensation for.
The landlord took immediate action after the leak was tested by issuing the 90 days’ notice of termination. Unlawful termination
After the first 90 days’ notice of termination was issued on 9 th June 2021, one of the tenants moved out in July 2021. Apparently, the remaining tenant was unable to move out on 9 th September 2021 due to financial reasons.
On 30 th September 2021, the landlord sent a 7-day notice to vacate under section 59 RTA to the remaining tenant. The landlord wrote that the property was deemed to be so seriously damaged as to be uninhabitable and major repairs needed to take place in order to restore the property to a state in which it can be lived in. The landlord acknowledged that the original work contemplated from the original 90-day notice could not commence due to Covid 19 restrictions. They were scheduled to begin on 11 th October 2021 and was expected to take between 4 to 6 weeks.
The tenants wrote back saying that the premises was not uninhabitable and that there was nothing from the Council to note it as being uninhabitable.
On 5 th October 2021, the landlord rescinded the 7-day notice to vacate the premises as work around the premises could not start until 11 th October 2021.
Under Section 60AA a landlord must not give a notice to terminate the tenancy knowing they are not entitled to do so. 4339261, 44123864
Breaching any of this without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A RTA.
The tenants says that there was no basis for claiming the premises was uninhabitable. The tenant says that the 90-day notice was also under false pretence and that it was initially just the kitchen and then later extended to bathroom renovation.
The landlord explained that the landlord may have panicked and sent the 7-day termination notice under the understanding that major renovation would make the premises uninhabitable and that it was during COVID-19 times so termination rules were ever changing.
Under section 51(2)(f) RTA, the landlord is in the clear as long as extensive alterations, refurbishment, repairs or redevelopment of the premises begin within 90 days after the termination date. That would have been 8 th December 2021.
The scope of the work can vary even between the issuing of the 90 days’ notice and when the work actually begins. The test is whether it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken and the work beings, or materials steps towards it are to be taken within 90 days of the termination date.
I do not find that the landlord had given the notice to terminate the tenancy knowing that they are not entitled to do so.
I find there is no public interest in this instance to award any exemplary damages even if there had been technical irregularities with the termination.
I dismiss the tenant’s application.

Claims and awards in Tenancy Tribunal application 4339261 — net $6,219.41 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Water rates	$48.41	Water rates
Repairs: Painting	$4,025.00	Repairs: Painting
Masking and cleaning	$632.50	Masking and cleaning
Repairs: Labour	$414.00	Repairs: Labour
Repairs: Light shades fitting	$138.00	Repairs: Light shades fitting
Repairs: Net curtain refitting	$20.00	Repairs: Net curtain refitting
Repairs: Curtain rail straightening	$57.50	Repairs: Curtain rail straightening
Repairs: Wall holes and broken door frame	$155.25	Repairs: Wall holes and broken door frame
Repairs: Travel time	$28.75	Repairs: Travel time
Loss of rent x 5 weeks	$2,800.00	Loss of rent x 5 weeks
Net award	$6,219.41
Total payable by Tenant to Landlord	$6,219.41

Order

Taituha McCarthy and Hemi McCarthy must pay Barfoot & Thompson Property Management Limited As Agents For Gk Levesque Ltd $6,219.41 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing on 22 nd August 2023, 19 th April 2024, and 19 th July 2024. This order is to be read together with the orders made on 22 nd August 2023, 22 nd April 2024 and 24 th July 2024. 4339261, 44123862
The landlord’s application for water rates, compensation, refund of the bond and loss of rent was heard in full by 19 th April 2024. Reasons were given on the order dated 22 nd April 2024 but no order for payment was made at that stage.
On 19 th July 2024, the tenants tried to respond again to the claims that had been dealt with on 19 th April 2024. The only point that required attention was whether the landlord can claim loss of rent for five weeks as tenant’s liability is capped at four weeks’ rent for any careless damage under section 49B(3) Residential Tenancies Act 1986 (“RTA”).
However, there is no maximum cap for intentional damage. The unfinished plastering patches are not careless damage. They would be classified as intentional damage.
Accordingly, my decision to award five weeks’ loss of rent remains unchanged.
I order the tenant to pay the landlord as per the order made above. Tenant’s cross-application
The tenant made a cross-application regarding the landlord’s failure to maintain and unlawful termination.
Under section 45 RTA, a landlord must provide and maintain the premises in a reasonable state of repair. Specifically, the tenant raised issues with the stairs, the stove and the shower. The tenant said that the premises was not compliant with Healthy Homes Standards (“HHS”).
In relation to the HHS, the landlord provided evidence of an HHS assessment, rangehood installation, draught stopping and insulation installation. I find that there was no breach of HHS.
The outside stairs had warped and had lifted. From the photos, it did not seem critically urgent. The landlord was aware of this from an inspection on 3 rd May 2021. On 18 th May 2021, the landlord made a work order for the stairs to be fixed. It was repaired in July 2021.
I find the 2-month turnaround time between noticing the issue and having it fixed was not unreasonable.
The stove had power issues and did not turn off. It was notified to the landlord on 5 th February 2021. A work order was put in by the landlord on 10 th February 2021 and the landlord ended up replacing the entire stove with a new free- standing stove on 25 th February 2021. I find the turnaround time between the issue being notified and the replacement oven being provided as reasonable.
The tenant sent a photo of the mouldy shower corner to the landlord on 5 th February 2021. On the inspection done on 3 rd May 2021, the landlord noted that the shower had a leak and mould had formed. On 27 th May 2021, a moisture 4339261, 44123863 testing was done but the landlord could not find the result of the moisture testing itself other than that it needed to be attended to.
The landlord issued a 90 days’ notice of termination on 9 th June 2021 for extensive alterations, refurbishments, repairs or redevelopment of the premises to be carried out within 90 days of the termination date of 9 th September 2021.
The shower leak issue was part of the need for extensive alterations, refurbishments, repairs or redevelopment.
Given the age of the building, I find that the landlord may not have realised the extent of the leak when the photo of the mouldy shower corner was sent by the tenant in February 2021.
If the tenant had sent the landlord a 14-day notice to remedy, or further requests for it to be fixed, I may have found that the landlord had failed to reasonably maintain the premises and award exemplary damages. However, I do not find that the three-month of inaction between the landlord being sent the photo and seeing the condition of the shower in person in the May inspection is something that warrants compensation for.
The landlord took immediate action after the leak was tested by issuing the 90 days’ notice of termination. Unlawful termination
After the first 90 days’ notice of termination was issued on 9 th June 2021, one of the tenants moved out in July 2021. Apparently, the remaining tenant was unable to move out on 9 th September 2021 due to financial reasons.
On 30 th September 2021, the landlord sent a 7-day notice to vacate under section 59 RTA to the remaining tenant. The landlord wrote that the property was deemed to be so seriously damaged as to be uninhabitable and major repairs needed to take place in order to restore the property to a state in which it can be lived in. The landlord acknowledged that the original work contemplated from the original 90-day notice could not commence due to Covid 19 restrictions. They were scheduled to begin on 11 th October 2021 and was expected to take between 4 to 6 weeks.
The tenants wrote back saying that the premises was not uninhabitable and that there was nothing from the Council to note it as being uninhabitable.
On 5 th October 2021, the landlord rescinded the 7-day notice to vacate the premises as work around the premises could not start until 11 th October 2021.
Under Section 60AA a landlord must not give a notice to terminate the tenancy knowing they are not entitled to do so. 4339261, 44123864
Breaching any of this without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A RTA.
The tenants says that there was no basis for claiming the premises was uninhabitable. The tenant says that the 90-day notice was also under false pretence and that it was initially just the kitchen and then later extended to bathroom renovation.
The landlord explained that the landlord may have panicked and sent the 7-day termination notice under the understanding that major renovation would make the premises uninhabitable and that it was during COVID-19 times so termination rules were ever changing.
Under section 51(2)(f) RTA, the landlord is in the clear as long as extensive alterations, refurbishment, repairs or redevelopment of the premises begin within 90 days after the termination date. That would have been 8 th December 2021.
The scope of the work can vary even between the issuing of the 90 days’ notice and when the work actually begins. The test is whether it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken and the work beings, or materials steps towards it are to be taken within 90 days of the termination date.
I do not find that the landlord had given the notice to terminate the tenancy knowing that they are not entitled to do so.
I find there is no public interest in this instance to award any exemplary damages even if there had been technical irregularities with the termination.
I dismiss the tenant’s application.

Tenancy Tribunal case 4339261 — Property damage at 7B Levesque Street, Birkdale, Auckland 0626

At a glance

Tenancy Tribunal case 4339261 — Property damage at 7B Levesque Street, Birkdale, Auckland 0626

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions