What was the outcome of Tenancy Tribunal case 4589050?

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

How much money was awarded in case 4589050?

Lawn Mowning: $30.00 awarded to landlord; Reletting Cost: $112.60 awarded to landlord; Rent Arrears: $123.57 awarded to landlord; Rent Loss: $1,606.43 awarded to landlord; Washing Machine Cap: $6.00 awarded to landlord; Waste Disposal Plug: $23.59 awarded to landlord

What type of tenancy dispute was case 4589050?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4589050?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9539305-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4589050?

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

How much money was awarded in case 4589050?

Lawn Mowning: $30.00 awarded to landlord; Reletting Cost: $112.60 awarded to landlord; Rent Arrears: $123.57 awarded to landlord; Rent Loss: $1,606.43 awarded to landlord; Washing Machine Cap: $6.00 awarded to landlord; Waste Disposal Plug: $23.59 awarded to landlord

What type of tenancy dispute was case 4589050?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4589050?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9539305-Tribunal_Order.pdf.

36 Whakatupu Road, Flat Bush, Auckland 2019 Tenancy Tribunal Case 4589050 — Rent arrears

Claims and awards in Tenancy Tribunal application 4589050 — net $1,902.19 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent loss	$1,606.43	Rent loss
Rent arrears	$123.57	Rent arrears
Lawn mowning	$30.00	Lawn mowning
Reletting cost	$112.60	Reletting cost
Washing machine cap	$6.00	Washing machine cap
Waste disposal plug	$23.59	Waste disposal plug
Net award	$1,902.19
Bond	$3,460.00
Total payable by Tenant to Landlord	$1,902.19

Claims and awards in Tenancy Tribunal application 4589050 — net $1,902.19 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent loss	$1,606.43	Rent loss
Rent arrears	$123.57	Rent arrears
Lawn mowning	$30.00	Lawn mowning
Reletting cost	$112.60	Reletting cost
Washing machine cap	$6.00	Washing machine cap
Waste disposal plug	$23.59	Waste disposal plug
Net award	$1,902.19
Bond	$3,460.00
Total payable by Tenant to Landlord	$1,902.19

Order

No suppression orders apply around publication of this decision.
Rizwana Khan, Irfana Begum, Rukshana Begum Khan and Zuher Suhayl Khan to pay Aklesh Naidu $1,902.19 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $3,460.00 (6247180-017) immediately apportioned as follows: Aklesh Naidu: $1,902.19 Rizwana Khan, Irfana Begum, Rukshana Begum Khan and Zuher Suhayl Khan: $1,557.81

Reasons

The Tribunal must consider an application filed by the Landlord.
There was no appearance by any of the tenants, but I note that one of the tenants, Irfanat Begum, requested on the morning of the hearing to attend by telephone because they were feeling unwell. That request was declined given the complexity of the claims, and given no medical evidence has been presented supporting an inability to attend the hearing. I am also minded that there were a number of co-tenants who could have appeared. However the tenant did advised that some of the claims were not disputed, so I have taken that into account below.

BACKGROUND

The tenancy is a fixed term tenancy, commencing on 2 October 2022, ending on 21 October 2023. The landlord is Aklesh Naidu, and the four co-tenants Rizwana Khan, Irfana Bafat Begum, Rukshana Begum Khan and Zuher Suhayl Khan.
During the tenancy a dispute arose between the landlord and tenants, as the tenants had a cat. The landlord sought the tenants to remove the cat, the tenants opposed that. The landlord applied to the Tenancy Tribunal for an order that the tenancy be terminated.
On 3 August 2023 the Tribunal (Adjudicator Northwood) issued a decision, terminating the tenancy on the grounds that the tenant had a cat in the premises, and the Adjudicator considered that was not a breach capable of remedy. The Adjudicator ordered possession of the premises to return to the landlord on 17 September 2023.
The landlord now seeks orders around rent arrears, compensation and exemplary damages following the return of the premises.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
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 un-likely, 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.
I will consider the relevant law that applies for the specific claims further below. Rent arrears
The landlord has applied for an order that the tenant pay rent arrears of $123.57, which relates to the final day of the tenancy. The tenants agree to this claim which is ordered by consent.

COMPENSATION

With any claim for compensation, to receive an order the party must incur a loss. In short the compensation is intended as best money can do, to compensate for the actual loss incurred.
Where a landlord claims compensation for damage caused by a tenant, the landlord must firstly prove the damage 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.
Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
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.
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 the High Court decision of Guo v Korck [2019] NZHC 1541. Loss of rent
The landlord seeks an order for lost rent. The landlord states that possession of the premises was returned on 17 September 2023, and the next tenants moved in on 2 October 2023. The landlord seeks rental for that interim period given this was a fixed term tenancy that was otherwise due to end on 21 October 2023. Analysis
In this case I accept there has been a loss for the tenants that follows the termination of the tenancy. That is a loss of rent between the tenants moving out, and the next tenants taking over the premises.
In this case the landlord has claimed the additional rent that would apply from 18 September 2023 to 1 October 2023 (the day after possession returned, and the day before the next tenancy commenced), which is 13 days.
A two week period in order to re-rent the premises is reasonable, and I find this claim has been established in full.
The landlord records on the application form that the rent for the premises was $865.00 per week, which is $123.57 per day. Multiplied by 13, means the rent loss is $1,606.43 which is ordered in full. Exterior cleaning
The landlord states there was mould and algae to the exterior of the premises that he has cleaned with a cleaning product and a scrubbing brush. The landlord seeks an order that the tenant pay $39.48 for the cleaning product. Analysis
The Residential Tenancies Act 1986 (RTA) requires that the landlord provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (s45(1)(a)), and there is an equivalent obligation on the tenant to return the premises: ...in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish.
It is important to note that the RTA does not require the premises to be provided / returned in an immaculate condition, only in a reasonably clean and tidy state. There is no scientific way to determine what is ‘reasonably’ clean and tidy, what is required is for the Tribunal to evaluate the evidence available (particularly photographs presented), and then to determine whether the premises would be reasonably clean.
the landlord must prove a breach on the part of the tenants, meaning the landlord must prove the exterior of the premises were not returned in a reasonably clean state.
I have considered the photographs provided, and I am not persuaded that the exterior was not returned reasonably clean and tidy. The landlord has not established this claim which must be dismissed. Lawn mowing
The landlord claims $30.00 for lawn mowing at the end of the tenancy, on the basis that the lawns were overgrown. Analysis
Again I have considered the photographs, and I agree with the position taken by the landlord that the lawns were overgrown. They were not in a reasonably tidy state, so it is reasonable to order the tenants to pay the lawnmowing costs of $30.00, which I order in full. Pest control
The landlord states there were spiders and ants in the premises, which he needed to treat, paying $50.00 to the person who did the lawns. Analysis
On balance, I do not find that this claim has been established. The photographs show what was a tidy interior at the end of the tenancy, and in fact the photographs taken during the tenancy was equally tidy. Having spiders or ants in a property is not of itself evidence the premises are unclean, these sorts of creatures can be found in the cleanest of dwellings. I am not persuaded there is evidence to show that the level of spiders and ants living in the house represented a state of the premises not being reasonably clean. Letting fee
The landlord seeks reimbursement of a letting fee paid to Barfoot & Thompson to the sum of $1,351.25 to find a replacement tenant. Analysis
Given the tenancy ended prior to the end of the fixed term period, making a contribution to the reletting costs is reasonable. It is important to recognise that the fixed term period was due to end on 21 October 2023, so the tenancy ended only 33 days early. That is a little under 5 weeks early.
If the tenancy was to end at the end of the fixed term period, then presumably the landlord would have started finding a new tenant prior to that end date. I consider it reasonable that the tenants reimburse the landlord for 1/12 th of the letting fee cost, which is $112.60. Door lock
The landlord has claimed $625.70 for the replacement of a front door lock. The landlord has not replaced the lock but he says he will do in the future at some time. Analysis
As I explained to the landlord at the hearing, this claim must be dismissed for two reasons.
Firstly, the landlord has not incurred any loss in relation to the door lock. He has not had it replaced, and he has not reduced the rent for the incoming tenants. I must say that looking at the scratching on the door lock, I would be surprised if any reasonable landlord would incur that cost in having the lock replaced, and I cannot be certain that if I were to have made this order, the landlord would have incurred that cost.
Secondly I do not consider the scratching is more than fair wear and tear. The lock is an electronic proximity lock, which opens with a card being placed on or near the reader. The scratching on the face of the lock seems to me entirely consistent with wear from the unlocking process, either from the card or keys on a keyring scratching the face of the lock. That is fair wear and tear which the landlord is responsible for. Even if that were not the case, there is no evidence to suggest the damage was careless or intentional damage. Blind damage
The landlord seeks compensation for damage to a blind in the tenant. The landlord has not had the work done to repair the blind, but says he will have the blind repaired in the future. Analysis
Again the landlord has not incurred any loss at this time as far as the blinds are concerned. The landlord has not paid for any repairs, nor is there evidence of the tenancy being rented at a loss.
I have considered the photographs, and while I agree that it does show some damage, I am not persuaded that it would be classed beyond fair wear and tear given the modest size and location of the damage. A consequence of people living in a dwelling is that they will cause minor damage to the premises, the tenants are not liable for that. Where damage is accidental the tenants would not be liable, it must be caused carelessly or intentionally, and there is no evidence that either situation arises.
This claim has not been established so is dismissed. Washing machine cap
The landlord seeks replacement costs of $6.00 for the replacement of a washing machine tap cap. The tenants have agreed to that claim which is ordered in full. Laundry door damage
The landlord seeks compensation for damage to a laundry door, located under the sink. It appears that the door has come into contact with water, which has caused the laminate product to swell. The landlord has claimed $100.00 for the replacement of the door, based on an estimate from a supplier. Analysis
This claim is marginal, but overall I decline to make the order.
Based on the photograph, it seems very likely that the door under the laundry sink has come into contact with water.
But it is important to recognise this is a wet area, so it would not be unexpected that cabinetry around a laundry sink will come into contact with moisture, even when used reasonably. To that extent the door should be reasonably robust, and able to handle modest exposure to moisture. There is insufficient evidence to support that the damage is more than fair wear and tear, or that the damage may have occurred in circumstances of carelessness. While the case is marginal, I find it has not been established to the balance of probabilities. Waste disposal unit plug
The landlord claims $23.59 for the replacement of a plug for the waste disposal unit. The tenants agree to this claim also which is ordered in full. Carpet replacement in garage
The landlord seeks $2,330 to replace carpet in the garage. The landlord has not had this work completed, but states that the tenants have damaged the carpet, by keeping their cat in the garage. I asked the landlord how the cat had damaged the carpet. The landlord said that there was urine contamination, and states that he has cleaned it by putting bleach on it, but thinks he might have a smell to the carpet at a later stage.
I noted to the landlord that his obligation is to provide the tenancy reasonably clean to the current tenant, and asked him how he was able to rent the tenancy to the new tenants if the carpet was unclean? The landlord advised that the carpet smells of bleach, but otherwise did not suggest it remained unclean. Analysis
I find this claim has not been established. There is no evidence before the Tribunal to show that the garage carpet has been damaged from cat urine. The fact of the landlord renting the premises to another tenant argues against there being any problem with the carpet in reality.
In the absence of damage being established, I can see not basis upon which the tenants could be held responsible for replacing the carpet. This claim is dismissed.

EXEMPLARY DAMAGES

The landlord has claimed exemplary damages because the tenants had a cat in the premises, but he could not otherwise identify what breach of the RTA arises. Analysis
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In this case the landlord has been unable to identify what provision in the RTA the tenants have breached by having a cat in the premises. The RTA does not have any prohibition on having pets in a tenancy, the best argument for the landlord is that there was contractual obligation not to have a pet. But I do not know what provision in the RTA has been offended that would be classed as a specific unlawful act – necessary to have exemplary damages ordered.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the landlord has applied for name suppression, but as he has not been wholly or substantially successful in the application, name suppression is declined.

Tenancy Tribunal case 4589050 — Rent arrears at 36 Whakatupu Road, Flat Bush, Auckland 2019

At a glance

Tenancy Tribunal case 4589050 — Rent arrears at 36 Whakatupu Road, Flat Bush, Auckland 2019

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

COMPENSATION

EXEMPLARY DAMAGES

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

COMPENSATION

EXEMPLARY DAMAGES

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions