What was the outcome of Tenancy Tribunal case 4601309?

The tribunal order states: Sanjay Kuamr to pay Mayank Patel and Ashaben Patel $1,280.00 from the

How much money was awarded in case 4601309?

Compensation: Rent Refund: $4,700.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Rent Arrears: $6,730.00 awarded to landlord

What type of tenancy dispute was case 4601309?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4601309?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9553364-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4601309?

The tribunal order states: Sanjay Kuamr to pay Mayank Patel and Ashaben Patel $1,280.00 from the

How much money was awarded in case 4601309?

Compensation: Rent Refund: $4,700.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Rent Arrears: $6,730.00 awarded to landlord

What type of tenancy dispute was case 4601309?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4601309?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9553364-Tenancy_Tribunal_Order.pdf.

74 Eskdale Road, Birkdale, Auckland 0626 Tenancy Tribunal Case 4601309 — Rent arrears

Claims and awards in Tenancy Tribunal application 4601309 — net $1,280.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$6,730.00		Rent arrears
Exemplary damages		$750.00	Exemplary damages
Compensation: Rent refund		$4,700.00	Rent refund
Total award	$6,730.00	$5,450.00
Net award	$1,280.00
Bond	$2,360.00
Total payable by Tenant to Landlord	$1,280.00

Claims and awards in Tenancy Tribunal application 4601309 — net $1,280.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$6,730.00		Rent arrears
Exemplary damages		$750.00	Exemplary damages
Compensation: Rent refund		$4,700.00	Rent refund
Total award	$6,730.00	$5,450.00
Net award	$1,280.00
Bond	$2,360.00
Total payable by Tenant to Landlord	$1,280.00

Order

Sanjay Kuamr to pay Mayank Patel and Ashaben Patel $1,280.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,360.00 (5288558-008) immediately apportioned as follows: Mayank Patel and Ashaben Patel: $1,280.00 Sanjay Kuamr: $1,080.00
Mayank Patel and Ashaben Patel must pay Sanjay Kuamr $5,450.00 as shown in the table below.
Sanjay Kuamr must pay Mayank Patel and Ashaben Patel $6,730.00 as shown in the table below.
The compensation awarded to the tenant should be deducted from the rent arrears owed to the landlord.
The landlord’s cross application in respect of rent arrears is allowed. All remaining claims by the landlord are dismissed.

Reasons

Both parties attended the hearing.
The tenant has applied for exemplary damages in respect of a breach of the Healthy Homes requirements and failing to provide the premises in a reasonable state of repair. The tenant as also applied for a rent refund and compensation for a retaliatory notice.
The landlord filed a cross application in respect of rent arrears, overdue water rates, compensation for damage, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent and water rates?

The tenancy ended on 1 August 2023. The landlord provided rent records which prove the amount owing at the end of the tenancy. Having sighted the landlord’s rent ledger I am satisfied that the tenant is responsible for the arrears. The tenant confirmed during the hearing that he accepts the outstanding arrears.
The landlord’s claim for rent arrears is allowed.
The landlord claims reimbursement for overdue water rates. In support of his claim the landlord only provided an excel type spreadsheet listing the overdue amounts. The landlord has not provided Watercare invoices to prove his claim. Without the Watercare invoices confirming the amounts owing for water consumption I find that the landlord has not proven this claim to the required standard.
The landlord’s claim in respect overdue water rates must be dismissed.

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 landlord says that the tenant left rubbish behind at the property which he had to remove. There were no other documents filed by the landlord in support of this claim. The tenant does not accept that he left rubbish behind at the property.
The landlord has provided limited photographic evidence in respect of this claim. I have not been provided with full entry and exit photographs which convince me that the tenant is responsible for items left behind. There are no invoices or expense claims for rubbish removal.
The landlord’s claim for rubbish removal is dismissed.

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 landlord claims that the tenant damaged the underfloor insulation of the property. He claims that the tenant had a dog at the address, and it was the dog which caused the damage.
The tenant says that he had his son’s dog at the property for two days on 24 and 25 October 2021. The landlord has also provided limited photographic evidence in support of this claim. While I have sighted the evidence in support of this claim I am not satisfied of the state of the insulation at the start of the tenancy. This is another example of the importance of entry photographs taken at the time the tenant moved into the property.
The landlord’s claim for compensation in respect of the insulation is dismissed. The tenant’s claims:
Sanjay Kuamr claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
In March 2022 the tenant sent a text message to the landlord stating his son was finding the house very cold and that the home was not healthy. The landlord replied that they would talk later that night. The tenant says that no follow up was received from the landlord.
On 6 October 2022 the tenant sent a further message to the landlord saying that the house was very cold.
On 13 May 2023 the tenant says he messaged the landlord again complaining about the cold condition of the house. He stated that the curtains were also getting mouldy.
On 3 June 2023 the landlord arranged for a new heat pump to be installed.
The tenant’s chief complaint is that the premises were not at an acceptable standard of repair at the start of the tenancy.
The tenant is claiming that he made multiple requests for a heat pump. He also claims that he informed the landlord of mould inside the house which was remedied. There were gaps under the doors and no moisture barrier on the floor. He also requested a Healthy Homes certificate from the landlord which was not provided. The tenant also claims that the landlord gave him notice terminating the tenancy. He says that this was retaliatory because of his complaints about the property.
The best evidence I have is the contents of the Health Homes Assessment Report dated 27 July 2023. This assessment was requested and paid for by the tenant.
The report is highly critical of the condition of the house as follows. It noted that the overall condition of the rental property was in poor condition, despite meeting certain insulation requirements and having a new heat pump in the living room.
The report also noted that there was no moisture barrier under the house.
There were also leaking pipes under the house which posed not only a risk of water damage to the property but also contributing to increased moisture levels promoting the growth of mould and compromising the overall condition of the property.
Mould was also found in multiple rooms throughout the property.
The cladding on the property was in poor condition and had been poorly repaired.
There were large gaps around the external doorways allowing cold drafts to enter the property.
The gutters were full of grass and broken off brackets resulting in water overflowing to the ground. This created a damp environment which contributed to moisture related issues.
There were rotten window frames allowing moisture into the building.
There were some small holes in the external walls which contributed the cold in winter.
This evidence confirms that the standard of the property was completely inadequate and had not been provided to the tenant at the start of the property in a reasonable state of repair.
Where problems are known but there is a failure to remedy, the unlawful act is intentional. There has been significant publicity about Healthy Home standards which a diligent landlord could be expected to know about. The effect of the failure to maintain significantly affected the tenants’ enjoyment and possibly the health tenant and is family. It is in the public interest that landlords comply with the law relating to tenancies so that living conditions for tenants are healthy and safe
I am satisfied that the failure to provide the premises in a satisfactory condition at the start of the tenancy was intentional. The evidence confirming that the property was not ready to rent is abundantly clear. Most of these issues should have been addressed prior to the tenants moving into the property. And because of this the landlord was constantly on the back foot reacting to requests for repairs and maintenance rather than being proactive prior to the start of the tenancy.
Based on the evidence provided it is my view that the landlord has failed to provide the premises in a reasonable state of cleanliness and repair prior to the tenants moving in.
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
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 landlord has failed to provide the premises in a reasonable state of repair. I find 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 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. Rent reduction:
The tenant has applied for a rent refund due to the living conditions at the property. The tenant says that he also had to take time off work because of the living conditions at the property.
Given the findings I have made after hearing and seeing the evidence I am awarding the tenant a partial rent refund. The rent refund starts from the start of the tenancy on 11 October 2021 until the conclusion of the tenancy on 1 August 2023. I have calculated that as 94 weeks in total.
I am reducing the rent by $50.00 per week. The tenant has had a degree of benefit from residing at the property and so should pay some rent. However, the landlord has deliberately turned a blind eye on their obligations at the beginning of the tenancy by failing to provide the property in a reasonable state of repair.
Accordingly, the tenant’s claim for a partial rent refund is allowed. Retaliatory Notice:
The tenant claims that the landlord’s notice to terminate dated 7 June 2023 was retaliatory. The need for termination was based on the landlord’s sister-in-law moving into the property. This did not happen and during the hearing the landlord confirmed that his sister-in-law was still living in India. The landlord says that his sister-in-law did not apply for an Accredited Employer Work Visa to enter New Zealand as the company had changed ownership. There are now new tenants in the property paying an increase in rent.
This claim is now a moot application. The tenant has now vacated the premises and moved on. As a result I make no finding in respect of this claim.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case – section 95A Residential Tenancies Act.
The landlord has not substantially succeeded with his application and therefore there is no basis for suppressing the landlord’s name as requested.
Both parties will absorb their respective filing fees.

Tenancy Tribunal case 4601309 — Rent arrears at 74 Eskdale Road, Birkdale, Auckland 0626

At a glance

Tenancy Tribunal case 4601309 — Rent arrears at 74 Eskdale Road, Birkdale, Auckland 0626

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent and water rates?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent and water rates?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions