What was the outcome of Tenancy Tribunal case 4542593?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4542593?

Cleaning: $219.50 awarded to landlord; Kitchen Vinyl: $200.00 awarded to landlord; Kitchen Vinyl: $200.00 awarded to landlord; Property Damage: $280.00 awarded to landlord

What type of tenancy dispute was case 4542593?

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

Where can I read the official tribunal order for case 4542593?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9327002-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4542593?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4542593?

Cleaning: $219.50 awarded to landlord; Kitchen Vinyl: $200.00 awarded to landlord; Kitchen Vinyl: $200.00 awarded to landlord; Property Damage: $280.00 awarded to landlord

What type of tenancy dispute was case 4542593?

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

Where can I read the official tribunal order for case 4542593?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9327002-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2, 14 Cambourne Road, Papatoetoe, Auckland Tenancy Tribunal Case 4542593 — Property damage

Claims and awards in Tenancy Tribunal application 4542593 — net $899.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet and vinyl floor cleaning	$219.50	15. I address the landlord’s claims below: a.
Repair damaged block wall	$280.00	Repair damaged block wall
Reduction in value - vinyl flooring (laundry	$200.00	Reduction in value - vinyl flooring (laundry
Reduction in value - vinyl flooring (kitchen	$200.00	Reduction in value - vinyl flooring (kitchen
Net award	$899.50
Bond	$1,940.00
Total payable by Tenant to Landlord	$899.50

Order

No suppression orders apply around publication of this decision.
Varun Puri and Kiran Kaur Puri to pay Mark Allan Cameron And Anna Helena Cameron As Trustees Of The Cameron Family Trust $899.50 from the bond, calculated as shown in the table below:
The Bond Centre is to pay the bond of $1,940.00 (3002103-014) immediately apportioned as follows: Mark Allan Cameron And Anna Helena Cameron As Trustees Of The Cameron Family Trust: $899.50 Varun Puri and Kiran Kaur Puri: $1,040.50
The landlord’s claim for compensation for damage to the stove top is dismissed. 4542593, 45440492

Reasons

Both parties attended the hearing.
This was approximately an 8 month tenancy which started on 18 July 2022 and ended on 25 March 2023.
The landlord has claimed compensation for damages and a refund of the bond following the end of the tenancy.
The tenants have filed a cross application disputing the landlord’s claims and seek a full refund of the bond.
In general, the onus or burden of proving a particular claim rests with the party who is making that claim. The standard of proof, or level of evidence, required is “on the balance of probabilities”. In other words, the party proving the claim must establish with evidence that their claim is “more probable than not” or “more likely than not” correct.

Did the tenant breach their legal obligations?

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 (“RTA”).
A tenant has an obligation not to intentionally or carelessly damage the property (section 40(2)(a) RTA). The landlord had to prove on the balance of probabilities (more likely than not) that damage was done during the tenancy and not remedied by the tenant. If this was proved, the tenant had to prove that the damage was not caused by his or her careless or deliberate acts or the actions of others at the property with the tenant’s consent. A tenant was also not liable for fair wear and tear as things wore out in the course of reasonable use: A tenant will not generally be liable for damage caused by “fair wear and tear”. “Fair wear and tear” is a common exception to liability for repair by a tenant under the general law of leases. In Taylor v Webb Scott LJ described “fair wear and tear” as: [T]hat brought about by the tenant, and other persons present in or on the premises with the consent of the tenant, either intentionally or as a normal incident of a tenant's occupation in the course of the “fair” (or “reasonable”) use of the premises for any of the purposes for which they were let – Grinlinton, Residential Tenancies (4th edn, 2012) paragraph 5.7.11;
See also the case Nixon v Geal-Otter DC North Shore, TT 216/94, 30 January 1996 at pages 26 and 27: 4542593, 45440493 Mere use of the premises will by the law of inevitability produce a deterioration in condition. ... [W]here a landlord proves the existence of damage, the landlord should also assume a burden of proof to exclude fair wear and tear. If a tenant raises a plausible explanation that points to fair wear and tear as an explanation, the landlord will fail in the claim.
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.
The landlord claims compensation for stained carpet, damage to the block wall in the lounge, rust stains on the vinyl flooring in the laundry, hole and dents in the vinyl flooring in the kitchen, and a large chipped coating off the stove top, following the end of the tenancy.
The landlord explained that the damage was covered by his insurance, but each careless damage is a separate claim at $1,200.00 excess per claim.
In this instance, I consider section 49B applies, as the landlord’s insurance excess was greater than any single insurable claim.
I address the landlord’s claims below: a. Stained carpet: The carpet was newly installed at the start of the tenancy. The landlord relied on photographs of the carpet at the end of the tenancy which showed 2 stains. The tenants say that even a new carpet would show some wear after a few months and would no longer be spotless. This is not a defence to the claim and does not negate the tenants’ obligation to leave the premises reasonably clean and tidy. I accept the landlord’s evidence that professional carpet cleaning was required to remove the stains to bring the carpet up to a reasonably clean and tidy standard. I find the tenants liable for the carpet cleaning costs claimed. b. Damage to the block wall in the lounge: The unit had been freshly painted at the commencement of this tenancy. I accept the landlord’s evidence that there was no visible damage to the walls at the start. Cable clips had been nailed into the concrete block wall during the tenancy and upon removal 4542593, 45440494 caused damage. The landlord relied on photographs taken at the end of the tenancy. The tenants believe the damage is fair wear and tear. I disagree. I find the damage is more than fair wear and tear, and the tenants have not disproved liability for the damage. I find the damage to the wall was intentional. The damage was the result of the intentional application of force to the surface of the walls. I award the cost of repair being $219.50. c. Damage to the vinyl flooring in the laundry: The vinyl was newly installed at the start of the tenancy. At the end of the tenancy, what appeared to be “rust marks” were found on the vinyl. The landlord believes this was likely due to the washing machine not being installed properly causing the machine to jump around causing the marks on the vinyl flooring. This was disputed by the tenants who considered the vinyl was poorly installed and not of good quality. The tenants provided no independent evidence to support their view. The tenants also argued that the damage would have not occurred if the landlord had done regular inspections. However, this is not a defence to the claim. It is the tenant’s duty to ensure that care is taken to avoid damage to a rented premises. The tenants further argue that the damage is fair wear and tear. I disagree. I find the damage is more than fair wear and tear, and the tenants have not disproved liability for the damage. The tenants have failed to convince me that the damage was not caused carelessly or deliberately. I am satisfied that the landlord has shown they are entitled to compensation for the vinyl flooring The landlord submitted that attempts to clean the marks off the vinyl flooring were not successful. I find the tenants are liable for the vinyl flooring cleaning costs. The landlord says that patching is not a viable method to remedy the damage and claims a contribution towards replacement costs. Such floors do get damaged from time to time, and the eventual cost of replacing the flooring is a business cost that is covered by rent paid. I note the damage is not significant, and there is no apparent reason the flooring cannot remain serviceable for several more years. I allow $200.00 towards the reduction in value of the vinyl flooring. d. Damage to the vinyl flooring in the kitchen: The landlord relied on photographs taken at the end of the tenancy showing a hole and dents in the vinyl flooring in the kitchen. The tenants accept that this was likely caused by a cabinet that was on the vinyl flooring but considered the damage fair wear and tear. The landlord did not consider the tenant’s explanation was consistent with the damage and argued that it looked like something sharp had dropped on the vinyl causing the damage. 4542593, 45440495 Contrary to the tenants’ view, I find the damage is more than fair wear and tear, and the tenants have not disproved liability for the damage. The tenants have failed to convince me that the damage was not caused carelessly or deliberately, and so are liable for the damage. Again, I do not consider the damage significant, and there is no apparent reason the flooring cannot remain serviceable for several more years. I allow $200.00 towards the reduction in value of the vinyl flooring. e. Damage to the stove top: The photograph produced by the landlord at the end of the tenancy shows chipped coating off the stove top. There is no evidence as to the probable cause. The tenants deny responsibility for the damage. Whilst I cannot completely dismiss that the stove top was damaged during the tenancy, on the evidence presented, and noting that the landlord as applicant bears the onus of proof, I cannot be satisfied that it is more likely than not that the stove top was undamaged at the commencement of the tenancy. The landlord produced no photographs of the condition of the stove at the start of the tenancy. I am not satisfied on the evidence that the landlord has proven this aspect of their claim and it is therefore dismissed.
I have taken into account betterment and depreciation but do not consider it applies as the property had been freshly painted with new carpet and vinyl flooring installed at the start of the tenancy.
The amounts ordered have been proved. Other matters
The tenants were concerned that the landlord raised the rent by $10.00 after they had moved in. There’ is nothing untoward in this. The landlord installed new carpet and vinyl flooring at the tenants request at the start of the tenancy. On the basis of substantial improvements, the tenants agreed by consent to the increase in rent which was confirmed in writing and signed by both parties. This is in accordance with section 28 of the RTA.
The tenants raised concerns regarding the process at the end of the tenancy. The tenants say they were not informed of all the issues claimed by the landlord at the final inspection. This was disputed by the landlord who was adamant that he had informed Mrs Puri (who was the only tenant present at the final inspection) of all the issues with the property at the final inspection. Even if all the issues claimed had not been raised by the landlord at the final inspection, this is not a situation where I would find the landlord was estopped from bringing a claim that had not been mentioned at the final inspection. Estoppel does not apply as I am satisfied that following the final inspection of the premises the landlord did not make a clear representation that he was satisfied 4542593, 45440496 with the condition of the property or that he would not pursue other matters such as damages they may have caused to the premises during the tenancy. This is supported by the fact that there was no intentional signing of the bond which would normally signify the finalising of matters with the tenancy.
The tenants were concerned that they were not given a proper opportunity to address the outstanding issues following the end of the tenancy. However, the landlord is not obliged to give the tenants an opportunity to come back to the property to complete cleaning or undertake repairs. The landlord is entitled to address these issues themselves and seek compensation from the tenants.
It was discussed and agreed during the course of the proceedings that the tenants had overpaid rent by one day. If the landlord has not done so already, they must pay one day’s rent of $70.71 directly to the tenants. Filing fee
As both parties have paid a filing fee and neither have been wholly successful with their claim, I do not consider it reasonable to order either party to reimburse the other the filing fee. Suppression order
The landlord has not requested a suppression order.
The tenants requested a suppression order. However, as they have not been wholly successful with their claim they are not entitled to a suppression order and there are no other grounds that apply around publication of this decision.

Claims and awards in Tenancy Tribunal application 4542593 — net $899.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet and vinyl floor cleaning	$219.50	15. I address the landlord’s claims below: a.
Repair damaged block wall	$280.00	Repair damaged block wall
Reduction in value - vinyl flooring (laundry	$200.00	Reduction in value - vinyl flooring (laundry
Reduction in value - vinyl flooring (kitchen	$200.00	Reduction in value - vinyl flooring (kitchen
Net award	$899.50
Bond	$1,940.00
Total payable by Tenant to Landlord	$899.50

Order

No suppression orders apply around publication of this decision.
Varun Puri and Kiran Kaur Puri to pay Mark Allan Cameron And Anna Helena Cameron As Trustees Of The Cameron Family Trust $899.50 from the bond, calculated as shown in the table below:
The Bond Centre is to pay the bond of $1,940.00 (3002103-014) immediately apportioned as follows: Mark Allan Cameron And Anna Helena Cameron As Trustees Of The Cameron Family Trust: $899.50 Varun Puri and Kiran Kaur Puri: $1,040.50
The landlord’s claim for compensation for damage to the stove top is dismissed. 4542593, 45440492

Reasons

Both parties attended the hearing.
This was approximately an 8 month tenancy which started on 18 July 2022 and ended on 25 March 2023.
The landlord has claimed compensation for damages and a refund of the bond following the end of the tenancy.
The tenants have filed a cross application disputing the landlord’s claims and seek a full refund of the bond.
In general, the onus or burden of proving a particular claim rests with the party who is making that claim. The standard of proof, or level of evidence, required is “on the balance of probabilities”. In other words, the party proving the claim must establish with evidence that their claim is “more probable than not” or “more likely than not” correct.

Did the tenant breach their legal obligations?

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 (“RTA”).
A tenant has an obligation not to intentionally or carelessly damage the property (section 40(2)(a) RTA). The landlord had to prove on the balance of probabilities (more likely than not) that damage was done during the tenancy and not remedied by the tenant. If this was proved, the tenant had to prove that the damage was not caused by his or her careless or deliberate acts or the actions of others at the property with the tenant’s consent. A tenant was also not liable for fair wear and tear as things wore out in the course of reasonable use: A tenant will not generally be liable for damage caused by “fair wear and tear”. “Fair wear and tear” is a common exception to liability for repair by a tenant under the general law of leases. In Taylor v Webb Scott LJ described “fair wear and tear” as: [T]hat brought about by the tenant, and other persons present in or on the premises with the consent of the tenant, either intentionally or as a normal incident of a tenant's occupation in the course of the “fair” (or “reasonable”) use of the premises for any of the purposes for which they were let – Grinlinton, Residential Tenancies (4th edn, 2012) paragraph 5.7.11;
See also the case Nixon v Geal-Otter DC North Shore, TT 216/94, 30 January 1996 at pages 26 and 27: 4542593, 45440493 Mere use of the premises will by the law of inevitability produce a deterioration in condition. ... [W]here a landlord proves the existence of damage, the landlord should also assume a burden of proof to exclude fair wear and tear. If a tenant raises a plausible explanation that points to fair wear and tear as an explanation, the landlord will fail in the claim.
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.
The landlord claims compensation for stained carpet, damage to the block wall in the lounge, rust stains on the vinyl flooring in the laundry, hole and dents in the vinyl flooring in the kitchen, and a large chipped coating off the stove top, following the end of the tenancy.
The landlord explained that the damage was covered by his insurance, but each careless damage is a separate claim at $1,200.00 excess per claim.
In this instance, I consider section 49B applies, as the landlord’s insurance excess was greater than any single insurable claim.
I address the landlord’s claims below: a. Stained carpet: The carpet was newly installed at the start of the tenancy. The landlord relied on photographs of the carpet at the end of the tenancy which showed 2 stains. The tenants say that even a new carpet would show some wear after a few months and would no longer be spotless. This is not a defence to the claim and does not negate the tenants’ obligation to leave the premises reasonably clean and tidy. I accept the landlord’s evidence that professional carpet cleaning was required to remove the stains to bring the carpet up to a reasonably clean and tidy standard. I find the tenants liable for the carpet cleaning costs claimed. b. Damage to the block wall in the lounge: The unit had been freshly painted at the commencement of this tenancy. I accept the landlord’s evidence that there was no visible damage to the walls at the start. Cable clips had been nailed into the concrete block wall during the tenancy and upon removal 4542593, 45440494 caused damage. The landlord relied on photographs taken at the end of the tenancy. The tenants believe the damage is fair wear and tear. I disagree. I find the damage is more than fair wear and tear, and the tenants have not disproved liability for the damage. I find the damage to the wall was intentional. The damage was the result of the intentional application of force to the surface of the walls. I award the cost of repair being $219.50. c. Damage to the vinyl flooring in the laundry: The vinyl was newly installed at the start of the tenancy. At the end of the tenancy, what appeared to be “rust marks” were found on the vinyl. The landlord believes this was likely due to the washing machine not being installed properly causing the machine to jump around causing the marks on the vinyl flooring. This was disputed by the tenants who considered the vinyl was poorly installed and not of good quality. The tenants provided no independent evidence to support their view. The tenants also argued that the damage would have not occurred if the landlord had done regular inspections. However, this is not a defence to the claim. It is the tenant’s duty to ensure that care is taken to avoid damage to a rented premises. The tenants further argue that the damage is fair wear and tear. I disagree. I find the damage is more than fair wear and tear, and the tenants have not disproved liability for the damage. The tenants have failed to convince me that the damage was not caused carelessly or deliberately. I am satisfied that the landlord has shown they are entitled to compensation for the vinyl flooring The landlord submitted that attempts to clean the marks off the vinyl flooring were not successful. I find the tenants are liable for the vinyl flooring cleaning costs. The landlord says that patching is not a viable method to remedy the damage and claims a contribution towards replacement costs. Such floors do get damaged from time to time, and the eventual cost of replacing the flooring is a business cost that is covered by rent paid. I note the damage is not significant, and there is no apparent reason the flooring cannot remain serviceable for several more years. I allow $200.00 towards the reduction in value of the vinyl flooring. d. Damage to the vinyl flooring in the kitchen: The landlord relied on photographs taken at the end of the tenancy showing a hole and dents in the vinyl flooring in the kitchen. The tenants accept that this was likely caused by a cabinet that was on the vinyl flooring but considered the damage fair wear and tear. The landlord did not consider the tenant’s explanation was consistent with the damage and argued that it looked like something sharp had dropped on the vinyl causing the damage. 4542593, 45440495 Contrary to the tenants’ view, I find the damage is more than fair wear and tear, and the tenants have not disproved liability for the damage. The tenants have failed to convince me that the damage was not caused carelessly or deliberately, and so are liable for the damage. Again, I do not consider the damage significant, and there is no apparent reason the flooring cannot remain serviceable for several more years. I allow $200.00 towards the reduction in value of the vinyl flooring. e. Damage to the stove top: The photograph produced by the landlord at the end of the tenancy shows chipped coating off the stove top. There is no evidence as to the probable cause. The tenants deny responsibility for the damage. Whilst I cannot completely dismiss that the stove top was damaged during the tenancy, on the evidence presented, and noting that the landlord as applicant bears the onus of proof, I cannot be satisfied that it is more likely than not that the stove top was undamaged at the commencement of the tenancy. The landlord produced no photographs of the condition of the stove at the start of the tenancy. I am not satisfied on the evidence that the landlord has proven this aspect of their claim and it is therefore dismissed.
I have taken into account betterment and depreciation but do not consider it applies as the property had been freshly painted with new carpet and vinyl flooring installed at the start of the tenancy.
The amounts ordered have been proved. Other matters
The tenants were concerned that the landlord raised the rent by $10.00 after they had moved in. There’ is nothing untoward in this. The landlord installed new carpet and vinyl flooring at the tenants request at the start of the tenancy. On the basis of substantial improvements, the tenants agreed by consent to the increase in rent which was confirmed in writing and signed by both parties. This is in accordance with section 28 of the RTA.
The tenants raised concerns regarding the process at the end of the tenancy. The tenants say they were not informed of all the issues claimed by the landlord at the final inspection. This was disputed by the landlord who was adamant that he had informed Mrs Puri (who was the only tenant present at the final inspection) of all the issues with the property at the final inspection. Even if all the issues claimed had not been raised by the landlord at the final inspection, this is not a situation where I would find the landlord was estopped from bringing a claim that had not been mentioned at the final inspection. Estoppel does not apply as I am satisfied that following the final inspection of the premises the landlord did not make a clear representation that he was satisfied 4542593, 45440496 with the condition of the property or that he would not pursue other matters such as damages they may have caused to the premises during the tenancy. This is supported by the fact that there was no intentional signing of the bond which would normally signify the finalising of matters with the tenancy.
The tenants were concerned that they were not given a proper opportunity to address the outstanding issues following the end of the tenancy. However, the landlord is not obliged to give the tenants an opportunity to come back to the property to complete cleaning or undertake repairs. The landlord is entitled to address these issues themselves and seek compensation from the tenants.
It was discussed and agreed during the course of the proceedings that the tenants had overpaid rent by one day. If the landlord has not done so already, they must pay one day’s rent of $70.71 directly to the tenants. Filing fee
As both parties have paid a filing fee and neither have been wholly successful with their claim, I do not consider it reasonable to order either party to reimburse the other the filing fee. Suppression order
The landlord has not requested a suppression order.
The tenants requested a suppression order. However, as they have not been wholly successful with their claim they are not entitled to a suppression order and there are no other grounds that apply around publication of this decision.

Tenancy Tribunal case 4542593 — Property damage at Unit/Flat 2, 14 Cambourne Road, Papatoetoe, Auckland

At a glance

Tenancy Tribunal case 4542593 — Property damage at Unit/Flat 2, 14 Cambourne Road, Papatoetoe, Auckland

At a glance

Award balance

Claims & awards

Order

Reasons

Did the tenant breach their legal obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the tenant breach their legal obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions