Published tribunal order
Tenancy Tribunal case 4600889 — Property damage at 202 Racecource Road Allenton, Ashburton 7700
Decided 18 Nov 2023 · Published 18 Nov 2023 · Application 4600889
Tenant favoured
- Property damage
Order
- Faheem Zaiyad Hussein and Nilofa Natasha Hussein must pay Khursheed Jahangir Mohammed and Monika Venkatesan $1,259.09 immediately, calculated as shown in the table below.
- The Bond Centre is to pay the bond of $1,800.00 to Khursheed Jahangir Mohammed and Monika Venkatesan immediately.
Reasons
- All parties attended the hearing which was conducted by telephone.
- The landlords have applied for rent arrears, compensation, payment of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenants have applied for compensation, exemplary damages and repayment of the bond. Rent
- There is a dispute as to when the tenancy started and that affects the claim for rent arrears.
- The landlord’s application states that the tenancy started on 28 February 2022 and ended on 31 May 2023. The tenancy agreement gives a start date of 21 February. The tenants said that they moved in on 28 February after receiving the keys on 25 February. I note that the tenancy agreement was not signed by the tenants until 15 March.
- The tenants evidence aligns with the landlords’ application and so I find that the tenancy started on 28 February. I would add that I found the tenants’ evidence generally to be credible.
- The landlords did not provide a satisfactory rent statement for the hearing. They provided another rent statement, in the proper form, after the hearing. But that statement was materially different from their earlier statement. I rely on the earlier statement which is more consistent with what the landlords were claiming from the tenants immediately after the tenancy ended.
- The rent that should have paid during the tenancy was $29,506.50. The rent paid, according to the landlords’ first statement, was $29,250. The shortfall is $256.50 and that has been awarded. The Tenant’s Responsibility for Damage to the Premises
- Tenants must not carelessly or intentionally damage the premises during the tenancy.
- 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.
- 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).
- 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).
- 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. Landlords’ Claims Bathroom Door
- The landlords says that the damage to the bathroom door was caused by moisture that caused the door to swell. They blame the tenants for not taking enough care to ventilate the bathroom.
- The bathroom is fitted with a heater and an extractor fan, but the landlords says that the tenants did not often use them.
- The tenants deny that and say that they used the bathroom normally and ventilated it properly. Bathrooms are damp places, and they say that the door was simply not able to cope with the moisture that is normally produced in a bathroom.
- I prefer the tenants’ evidence. I note that there is no written evidence that the landlords expressed any concern about the way that the tenants were using the bathroom (or for that matter the kitchen). I also fail to see how the landlords would know how they were using the premises day to day.
- The onus of proof lies on the landlords, and they have not proved that it is likely that the damage to the bathroom occurred during the tenancy or that it was caused by the tenants’ careless use of the bathroom. The landlords did not have any proper ingoing condition report or photographs. In my view, it is at least as likely that the damage was pre-existing or occurred during normal use of the bathroom and the door and skirting were susceptible to damage. Driveway Edging and Timber
- There was no evidence of the alleged damage to the edging provided for the hearing. The tenants denied any damage. After the hearing, the landlord produced a few photographs showing minor damage to a small section of edging. The timber looks weathered and possibly degraded. Even if the tenants did run over the edging at that place, I would not find that to be careless damage. The driveway edging should be robust enough to cope with that.
- The landlords have not proved this claim and so it is dismissed. Kitchen Cupboard Doors
- The landlords says that these doors too were damaged by moisture but this time from a leak under the sink that the tenants failed to deal with. The tenants say that there was water damage from a leak but that affected only the bottom of the cupboard door under the sink. They point out that there was damage to many of the cupboard doors and that the damage could not possibly have been caused by a single leak. They say that the cupboard doors were low quality, and they were affected by the moisture that is normally associated with a working kitchen.
- I prefer the tenants’ evidence. A leak under the sink would not have caused damage to other kitchen cupboards and I accept the tenants’ evidence that they reported the leak when they became aware of it.
- If the landlords claim that the tenants misused the kitchen and caused damage to the cupboards due to excessive condensation, I reject that claim for the same reasons that I rejected the claim for damage to the bathroom.
- This claim is therefore dismissed. Wall Damage
- There was some wall damage which the landlords said was caused during the tenancy. The tenants did not accept that, but they have paid the landlords $1,051.59 for the cost of repairing the damage.
- The tenants say that the landlords have wrongfully charged them for the damage. This is therefore a tenants’ claim but I will deal it as a landlord’s claim for convenience.
- I have some sympathy for the tenants’ claim that the wall damage was not their responsibility. It consists of two short cracks in a narrow wall between two bedrooms. One crack is either side of a light switch. The other is parallel to it. It does not strike me as impact damage, and it is difficult to see how the tenants could have caused it.
- But the tenants appear to have accepted that it occurred during the tenancy, and they accepted responsibility for it by paying the estimated cost of repair. I note that the amount sought by the landlords appears high to repair the limited damage shown in the photograph. In all the circumstances I accept that the tenants were responsible for it.
- There is no suggestion that the tenants caused the damage intentionally. The landlord had insurance for accidental damage to the premises with an excess of $400. Therefore, that is the most that the landlord can claim for the damage. I have therefore awarded the tenants $651.59. Tenants’ Claims Termination Notice
- The landlords’ 90-day termination notice was based on their intention to renovate the premises. In fact, as soon as the tenants vacated, they put new tenants into the premises. They said that the contractors were not ready to begin the work. That is an unconvincing explanation. 90 days is ample time to arrange for the contractors to start work. The Act also requires the work to start within 90 days of termination date and plainly the landlord cannot expect that if they have put new tenants in the premises.
- I think it is more likely the landlords wanted the tenants gone because they were not happy with them and that is why they served the notice.
- The tenants are too late to claim that the notice was retaliatory. Such an application must be made within 28 days of the notice. The tenants said that they were aware that they could have challenged the notice, but they were ready to leave due, they said, to the landlords’ harassment of them. The landlords claimed that the tenants wanted to move to Christchurch anyway. The tenancy was terminated on the tenants’ notice.
- I must also consider whether the landlords knew, when they served the notice, that they did not have grounds to do so. That is difficult because things can change between service of the notice and expiry of the notice. I can’t rule out that there was some difficulty arranging contractors and that the landlords therefore decided to put new tenants in to avoid a void period.
- On balance I am not satisfied that there is a good basis to find that the landlords committed an unlawful act in relation to the notice and so there is no award in respect of it. Stove Top
- There was a problem with the stove top and the tenants reported it to the landlords.
- There was a dispute as to what happened after that until the landlord’s replaced the cooker completely approximately six months later.
- The tenants said that the landlords gave then a single burner gas camp stove for a time and then a two-element electric bench top.
- The landlords said that they gave the tenants the gas burner for a day as an emergency measure and then replaced it with the bench top appliance. They said that there were difficulties sourcing a replacement stove top and then the entire cooker. They say that they acted reasonably in the circumstances.
- Given the lengthy time that it took to replace the stove top the onus rests on the landlords to justify the delay.
- In my view the landlords would normally be under an obligation to replace the stove top and, if necessary, the cooker, within say two weeks. In exceptional circumstances four weeks might be justifiable. But six months is not justifiable.
- Once the landlords became aware that the stove top could not be replaced and that it would take months for the cooker to be replaced, they should have sourced an obtained a cooker from elsewhere. It needn’t have been expensive. A decent second-hand cooker would have sufficed.
- I find that the landlords failed to replace the stove top within a reasonable time and that the tenants are entitled to compensation for the loss of two working elements for six months.
- I accept that this caused the tenants some inconvenience when they were cooking a meal that needed more than two elements at the same time. I don’t accept that there was a need to buy takeaway or ready-made food. It is reasonable to expect the tenants to mitigate the effects by adapting their cooking,
- An award of $500 is appropriate.
- I am not satisfied that an award of exemplary damages is warranted. Quiet Enjoyment
- The landlords acted intrusively in some respects, but it did not constitute harassment of the tenants, so an award of exemplary damages is not warranted.
- The landlords’ actions were minor and so I decline to order compensation. In my view the main problem here was the proximity of the landlords to the tenants. Those situations tend to generate issues over the privacy and quiet enjoyment of the tenants. Filing Fees
- Both sides have had mixed success and so I make no award of the filing fees.