Published tribunal order
Tenancy Tribunal case 4478400 — Rent arrears at 43 McAnnalley Street, Manurewa East, Auckland 2102
Decided 18 Aug 2023 · Published 18 Aug 2023 · Application 4478400
Landlord favoured
- Rent arrears
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Mere Tipene must pay Lin Yang $10,790.03 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $2,560.00 () to Lin Yang immediately.
Reasons
- Both parties attended the hearing. The landlord had the assistance of a mandarin interpreter.
- The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenant has claimed that the landlord has failed to maintain the property, failed to provide information requested, and not appointing an agent for the landlord who was overseas for 18 months. How much is owed for rent [and water rates]?
- The tenancy ended on 5 March 2023. The landlord provided rent records and water rates invoices. There was discussion about the actual amount owing.
- The tenant was behind in water bills. The landlord and tenant agreed in June 2022 that she would pay an extra $20.00 per week, in addition to the rent, for the water bills.
- The landlord received $500.00 from June to December 2022 for these additional $20.00 per week payments. However, the landlord forgot to deduct this amount in the final water bills. The landlord had initially sought $2943.59 in water bills. I took the $500.00 off that amount. The tenant owes $2443.59 in water bills.
- The tenant stopped paying the rent in December 2022 because she felt that the landlord was not maintaining the property. The tenant accepts that she owes rent arrears and water bills.
- Initially the landlord was claiming $9105.00 in rent arrears. However, it became evident that the landlord was calculating the rent as $660.00 per week rather than $640.00 per week. The extra $20.00 was for the water bills. I amended the rent schedule to reflect the correct amount owing. The tenant owes $8320.00 in rent arrears.
- I am satisfied that the tenant owes the rent arrears and water bills as set out above.
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 tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish. Rubbish removal and cleaning
- The landlord provided invoices and photographs of the property at the end of the tenancy. The property was not clean and tidy and there was extensive rubbish left inside and outside of the property.
- The landlord provided an invoice for rubbish removal for $1495.00. The tenant accepted the invoice. I also find that the invoice was reasonable given the extensive rubbish that had to be removed from the property.
- I am satisfied that the landlord had proven his claim for rubbish removal. The landlord has not provided an invoice for the cleaning costs. However, the property needs extensive repair and so the cleaning will be done after the repairs. The landlord is not seeking to claim for cleaning costs against the tenant. Carpet damage
- The landlord sought to claim for the full cost of replacement of the carpet. The carpet was heavily stained and smelt badly at the end of the tenancy. The landlord had to replace the carpet as they were beyond cleaning.
- The tenant agrees that the carpet was smelly but says that supports her claim that the property had leaking issues and the carpets were wet as a result.
- The landlord sought $2070.00 for the cost of replacing the carpets. Concrete front pillars
- The landlord was seeking to claim $2645.00 for the cost of damage to the concrete pillars at the start of the driveway.
- The tenant and the landlord provided photographs of the concrete pillars. The pillars were in poor condition, but there is no evidence that the pillars had been damaged. It appears that the concrete filler between the blocks has disintegrated. The landlord told the Tribunal that he had to repair the concrete pillars before the tenant moved in. The tenant denies causing damage and said the pillars were like that when she moved in.
- I cannot see how the tenant could have caused damage to the pillars without leaving impact marks on the concrete. There are no marks indicating that they have been hit with something hard and damage caused.
- The landlord has not proven his claim for the concrete pillars. This is a home built in 1959 and it appears that the fence pillars are original. It is natural that building products deteriorate over time.
- I am dismissing the landlords claim for the concrete pillars. Painting and repairs to wall
- The landlord provided photographs and an invoice for $5520.00 for repairs to walls and repainting.
- The parties went through the photos and the tenant accepted that the damage was caused during her tenancy.
- The landlord claims that he did a renovation in 2015, painting the walls and putting down new carpet. Bathroom door
- The landlord provided photos and an invoice for $265.00 for a new bathroom door. The tenant accepted that the damage was caused by her during the tenancy. Garage tilt Door
- The landlord provided an invoice for $2875.00 for a replacement garage tilt door. The landlord also provided photos that show a missing garage tilt door.
- The tenant claimed that one garage door fell off and the other one they eventually removed.
- It is clear from the conversations had in the hearing that there had been a problem with the garage door. The landlord had repaired the missing garage tilt door on an earlier occasion when the tenant advised him that the springs were rusty and had collapsed.
- The tenant is the mother of young children and was concerned for the children’s wellbeing if the broken tilt door remained in place. The tenant was concerned that the door might fall on one of the children. The tenant advised that the garage tilt door had fallen and hit the landlord on the head one day when he was fixing it.
- The tenant asked the landlord if she could remove the door for safety reasons. The landlord did not deny that the conversation had taken place. As a result, the tenant had the broken tilt door removed. Eventually as it was rusty and broken, she put it out with the inorganic rubbish collection.
- This garage and tilt door had been built in 1959 when the house was built.
- I do not believe the tenant has broken or damaged the garage door. This is very old and was clearly at the end of its usefulness.
- I am dismissing the landlords claim for the cost of the garage door.
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 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 following damage was caused during the tenancy: -Carpet -Painting and repairing walls -Bathroom door
- The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- The amounts ordered are proved.
- 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 items at the start of the tenancy and their likely useful lifespan. The renovation was 8 years ago and given the lifespan of 10 years for carpets and household items, I find the follow amounts are proven once deprication has been taken off 80%. While I accept there has been damage the landlord should not be put in a better position than he would have been.
- The following is the amounts proven and 80% deprication taken off: -Carpets - $414.00 -Repairing and repainting walls - $1104.00 -Bathroom door - $53.00 Tenant claims – Failure to appoint agent – s16A RTA
- Mere Tipene claims the landlord has been overseas for longer than the Act permits without appointing an agent.
- A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A (1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A (6) and Schedule 1A Residential Tenancies Act 1986.
- The tenant has explained why they believed the landlord has been out of New Zealand for more than 21 days. The landlord left New Zealand in April 2021 for China and did not return until December 2022. The landlord advised that his father was ill and so he stayed in China to help his family.
- The landlord said he had a friend in New Zealand whom he could contact if there was a problem with the property. However, the landlord confirmed that he did not provide the tenant with this person’s mobile, email or contact address.
- The landlord was of the view that he was still able to receive emails from the tenant and so did not need to provide an agent and details to the tenant.
- As the landlord has not appointed an agent, they have committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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) Residential Tenancies Act 1986.
- I am satisfied that the landlord did not comply with his obligation under the RTA. The tenant needed to have access to an agent if the landlord was not available. The tenant did have issues with the property and felt she had no one to help her.
- There is a real public interest in ensuring that landlords have an agent particularly when they have left the country for 18 months. The tenant is awarded $500.00 for the landlord’s failure to provide an agent. This award will be deducted from the debt owed to the landlord as set out above. The tenants claim the landlord failed to provide information requested:s13ARTA
- The tenant claimed that she asked the landlord for specific information that the landlord failed to provide. The tenant asked for an electrician report, but did not receive it from the landlord.
- The landlord agreed that they did not provide the report. I am not sure that this type of report would fall under the requirements as set out in s13 of the RTA.
- I have considered what the effect was on the tenant for not being provided with the electrician report.
- I am not satisfied that the tenant has proven their claim for failure of the landlord to provide specific information requested. The tenants claim the landlord failed to maintain the property: S45 RTA
- The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must: provide the premises in a reasonable state of cleanliness provide and maintain the premises in a reasonable state of repair comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 comply with any relevant enactment in relation to buildings, health, and safety provide an adequate means for the collection and storage of water if there is no reticulated supply
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- The tenant claims that the house was mouldy, that the sunroom and lounge ceiling and floors were leaking, that the carpet was mouldy and wet.
- There was agreement that issues had occurred during the tenancy. The landlord provided the Tribunal with an extensive file of invoices and receipts for maintenance carried out on the property during the tenancy.
- The landlord believes that any issues with maintenance were as a result of the tenant not taking appropriate care of the premises.
- The landlord also provided the Tribunal with a copy of Healthy Homes Assessment carried out on 12 November 2021. The property was fully Healthy Homes compliant. The report writer specifically noted that that the home had “no visible mould or dampness, which is a good sign that the home is warm and dry”.
- I don’t not find that the tenant has proven their claim that the landlord failed to maintain the property.
- Neither party was seeking suppression of their names and details.
- The bond is to be refunded to the landlord to offset the debt owed by the tenant to the landlord.
- Because the landlord has been largely successful with their claim, I must reimburse the filing fee.