What was the outcome of Tenancy Tribunal case 4612489?

The tribunal order states: Julia Dyer to pay Neville Butler and Kerry Butler $1,550.71 from the bond,

How much money was awarded in case 4612489?

Cleaning: $230.00 awarded to landlord; Cleaning: $755.62 awarded to landlord; Compensation: $2,500.00 awarded to tenant; Curtains And Tracks: $178.48 awarded to landlord; Property Damage: $2,812.50 awarded to landlord; Toilet Seat: $74.11 awarded to landlord

What type of tenancy dispute was case 4612489?

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

Where can I read the official tribunal order for case 4612489?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9656736-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4612489?

The tribunal order states: Julia Dyer to pay Neville Butler and Kerry Butler $1,550.71 from the bond,

How much money was awarded in case 4612489?

Cleaning: $230.00 awarded to landlord; Cleaning: $755.62 awarded to landlord; Compensation: $2,500.00 awarded to tenant; Curtains And Tracks: $178.48 awarded to landlord; Property Damage: $2,812.50 awarded to landlord; Toilet Seat: $74.11 awarded to landlord

What type of tenancy dispute was case 4612489?

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

Where can I read the official tribunal order for case 4612489?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9656736-Tenancy_Tribunal_Order.pdf.

38B Resolution Road, Welcome Bay, Tauranga 3112 Tenancy Tribunal Case 4612489 — Property damage

Claims and awards in Tenancy Tribunal application 4612489 — net $1,550.71 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning	$230.00		Carpet Cleaning
Replacement carpet	$2,812.50		Replacement carpet
Carpet Cleaning: Paint walls	$755.62		Carpet Cleaning: Paint walls
Curtains and tracks	$178.48		Curtains and tracks
Toilet seat	$74.11		Toilet seat
Compensation		$2,500.00	Compensation
Total award	$4,050.71	$2,500.00
Net award	$1,550.71
Bond	$1,760.00
Total payable by Tenant to Landlord	$1,550.71

Claims and awards in Tenancy Tribunal application 4612489 — net $1,550.71 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning	$230.00		Carpet Cleaning
Replacement carpet	$2,812.50		Replacement carpet
Carpet Cleaning: Paint walls	$755.62		Carpet Cleaning: Paint walls
Curtains and tracks	$178.48		Curtains and tracks
Toilet seat	$74.11		Toilet seat
Compensation		$2,500.00	Compensation
Total award	$4,050.71	$2,500.00
Net award	$1,550.71
Bond	$1,760.00
Total payable by Tenant to Landlord	$1,550.71

Order

Julia Dyer to pay Neville Butler and Kerry Butler $1,550.71 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,760.00 (3419846-007) immediately apportioned as follows: Neville Butler and Kerry Butler: $1,550.71 Julia Dyer: $209.29

Reasons

Ms Dyer rented the tenancy premises from the Butlers for 4.5 years from November 2018. The tenancy ended in late May 2023 on the expiry of Ms Dyer’s termination notice.
Ms Dyer lived in the premises with her 3 children now aged 10, 11 and 17 years old.
On 22 May 2023 Ms Dyer applied to the tribunal for orders seeking compensation for overpaid rent, no kitchen rangehood, laundry leaks, no hot water tub, water overflowing on roof, leaking hot water cylinder, lack of exterior land drainage, leaking toilet, broken kitchen drawer, window latch broken, bathroom skirting board missing, 3 bedroom wardrobe door knobs missing, garden shed leaking, toilet window faulty, and fence repair.
On 21 July 2023 the landlord applied for orders for compensation for replacement curtains and curtain tracks, toilet seat, carpet cleaning, and repairs/painting of walls.
On 17 August 2023 the parties went to mediation and resolved part of the landlord’s claims (as regards water rates, rubbish disposal, wood waste disposal, and cleaning). At the mediation the landlord sought to include a claim for replacement carpet because the carpet cleaning was not successful. This claim is allowed because the tenant had notice of it and sufficient time to prepare to respond to it. It also follows as a natural consequence from the landlord’s original claim.
On 8 November 2023 the tribunal hearing was held. Both parties attended the hearing. Issues Tenant’s Claims
The issues for me to determine are: a. Is the tenant entitled to a refund of rent in respect of lawnmowing charges paid by the landlord? b. Has the landlord breached their obligation to provide and maintain the premises in a reasonable state of repair and to comply with building health and safety laws? c. If so, what compensation should be awarded? Landlord’s Claims
The issue for me to determine is whether the tenant is responsible for damage to the premises? Tenants Claims Is the tenant entitled to a refund of rent in respect of lawnmowing charges paid by the landlord?
The tenant seeks reimbursement of $3,840.00 for the portion of rent she says she paid for the lawns to be mowed ($20 per week) from the start of the tenancy until 30 June 2022 when Ms Dyer took over responsibility for mowing them. This figure also includes a calculation for the portion of the bond taken (4 weeks at $20 = $80). She says the lawns were only done every 3 weeks for $25 so the landlord has unfairly profited.
The tenant is not entitled to a refund. She agreed to rent that included the costs of mowing lawns. She is therefore liable to pay the agreed rent until the parties mutually agreed that the landlord would no longer be responsible to mow them. It is a tenant’s obligation during and at the end of the tenancy to keep the grounds reasonably tidy, which includes the lawns. It was at her request the landlord undertook to do the lawns. The regularity of the lawnmowing was never stipulated. While the landlord’s mowing contractor changed and then reduced his costs, that does not alter the agreed rent to be paid between the parties.
Further there is no overall unfairness in the rent paid. For the first 3 years of the tenancy the rent did not increase. When the tenant resumed responsibility for the lawns her rent was decreased by $20 per week.
This application is dismissed. Has the landlord breached their obligation to provide and maintain the premises in a reasonable standard and to comply with building health and safety laws?
A landlord has an obligation to repair and maintain the premises to a reasonable state of repair having regard to the age and character of the premises, and to comply with all building health and safety laws applicable. Sections 45(1)(b) and (c) RTA. A tenant must notify the landlord of the need for repair as soon as possible after discovery section 40(1)(d) RTA. Once notified by the tenant of a problem, the landlord must act promptly to attend to the repair.
The tenant notified landlord of a series of items to be fixed on 20 June 2022. A handyman went to the premises and carried out various repairs.
Kitchen rangehood: The tenant requested that the landlord install a rangehood as he had said he would do. The landlord’s contractor removed a kitchen cupboard and made space above the oven for it to be installed, however it was never done.
The Healthy Homes standards do not apply because it is an existing tenancy that started in 2018. So the landlord has no obligation to install a mechanical means of ventilation (a kitchen fan) in the kitchen until 1 July 2025.
However the moving of the cupboard created some inconvenience for the tenant. It meant she had some difficulty in reaching across to store crockery or food in those cupboards. The landlord says these cupboards were retained at the tenant’s request and were not essential as there was plenty of other kitchen storage. Regardless of the landlord’s views on storage capacity, the tenant agreed to rent the premises with those cupboards in place so she is entitled to have them retained. There was also some loss of amenity with the unsightly wall not repaired because the range hood was never installed. So compensation is warranted as ordered below.
Laundry leaks: The tenant says there was a leak in the laundry, which the landlord failed to repair. Texts record the tenant raised the issue of a leak on 12 April 2022 and it was fixed by the plumber on or around 2 August 2022. A landlord must respond promptly to repair the premises once notified. I find that period too long. It is not acceptable for a landlord to engage a contractor then sit back and say he has fulfilled his obligations. This approximately 4 month delay should be compensated and is dealt with below.
However I do not find the landlord failed to repair the laundry floorboards because they were not discovered by the landlord to be damaged until the end of the tenancy. It is more likely the floorboards were damaged as a result of the hot water cylinder leak.
Laundry tub: The tenant says the laundry tub was not able to be used, and the laundry tub taps needed to be replaced. She provided photographs in support which show the tub detached from the wall, and the cupboard underneath the tub in very poor condition. She says she had difficulty turning on the cold tap.
The laundry tub was detached by the landlord’s tradesman at the beginning of August 2022 when attending to repairs. The tenant did not follow this up with the landlord again until February 2023. The landlord did not follow up with his tradesman to see what work was completed. While I accept the tenant could still use her washing machine it meant her washing machine had to be reconnected to the piping each time. The cold water tap was tight and difficult to use. She did not have the full unimpeded use of the laundry tub and cupboard underneath, it remained detached and was not replaced during the tenancy. It was also unsightly.
This is a breach of the landlord’s obligation to maintain the premises in a reasonable state of repair. The tenant suffered great inconvenience in daily living with the washing of her children’s clothes from August 2022 until the tenancy ended in May 2023, some 10 months later.
Water overflowing on roof: I am satisfied that the water on the roof is the normal spill from the wetback on the fire. It is not as a result of any malfunction. The plumber checked it and did not find any problem. This claim is not proved.
Hot water cylinder: I am satisfied the leak from the hot water cylinder was fixed promptly once the landlord was notified. I find no breach by the landlord.
Drainage: The tenant says the laundry leaks caused flooding outside. While some water escaped from the leaking toilet as discussed below, the main cause was surface flooding from heavy rainfall events due to the topography and location of the house in a valley. Has the landlord breached their obligation? I accept that attempts to find a solution were made over the years and eventually it was found that a soak hole was not working. There is insufficient evidence to establish the landlord failed to take reasonable steps to resolve this. I accept it was a hidden defect so I find no breach.
Toilet leaking: Towards the end of 2021 the tenant notified the landlord of a toilet leak. A plumber went to the property and found no problems with the toilet cistern or connections and concluded ‘the leak’ was urine. Another plumber came to the property in April 2022 and the tenant urged him to look at the pipes underneath the house. A crack was then found in the S bend of a pipe. The tenant says the landlord then refused to repair it until after the tenancy ended.
I find by the time this defect was established that the relationship had deteriorated between the parties. The tenant refused the landlord access to show a sales agent through the house and stopped responding to the landlord’s texts regarding access to the premises. There was no reason to suspect that these pipes had deteriorated because all the piping under the house was replaced 10 years ago as a result of a product failure. For all these reasons the landlord is not in breach of their obligation.
Broken kitchen drawer: The tenant notified the landlord of this problem and the handyman fixed it by building a new drawer. I find no breach.
Window latch broken: The tenant says that although she notified the landlord of the need for a window latch to be repaired his handyman failed to do so. She says there was no window latch one side of a window. The landlord denies this. He says at the end of the tenancy all windows were lockable and usable.
There is insufficient evidence to prove this claim. The tenant has not provided any independent evidence such as photographs. This claim is dismissed.
Bathroom skirting board missing: There was a missing skirting board that was overlooked by the landlord’s contractor when carrying out repairs. What loss has the tenant incurred as a result? The shower was fully functional and bathroom able to be used. There is however some very minor loss of visual amenity.
Bedroom wardrobe door knobs missing: It is acknowledged that one wardrobe door knob was missing at the beginning of the tenancy (see property condition report). Two other wardrobe doors knobs were replaced during the tenancy along with the third. With the limited evidence provided, it is likely the doorknobs were loose. A landlord should provide a house with wardrobe door handles/knobs in place and functional. This is a breach that has caused inconvenience to the tenant in not being able to open and close wardrobe doors properly.
Garden shed leaking: The tenant says she stored firewood in the garden shed but the roof was bent so the water came through and wet her firewood. She says the fireplace was her only source of heating, and the house became difficult to heat with wet wood.
The landlord says it was old and worn but the tenant had other options to store her wood in the carport or garage. The tenant says the carport was also leaky.
A garden shed does not have to be leak proof. If items are to be stored in a worn and possibly leaky shed then it is up to the tenant to take practical steps to protect her possessions. In the case of firewood, using a tarpaulin would have been one option. Alternatively there was a garage available to store firewood that did not leak. I find no breach.
Toilet window faulty: The tenant says the toilet window was difficult to close and she feared breaking the latch. So she had to leave it open which was a security concern for her.
Although the window could close it needs to be able to open and shut regularly because it is an important source of ventilation. I find the landlord failed to maintain this window’s functionality to the required standard. The tenant is entitled to compensation for the inconvenience and anxiety from reduced security incurred.
Fence repair: The tenant says the fence needs to be repaired and has asked the landlord to talk to the neighbour (a social housing provider) to contribute to its repair.
The landlord says that one railing was broken and has been repaired, and is amenable to contributing to a new fence of the neighbour agrees.
There is insufficient evidence to establish the fence must be repaired further by the landlord. I find no breach.

What compensation should be awarded?

The landlord has breached its repair and maintenance obligation as regards: kitchen cupboard shift; laundry leak repair delay; laundry tub; bathroom skirting board; door knobs; and the toilet window. Compensation is to be awarded for these breaches.
The fixing of compensation is not an exact science. The High Court explains it as follows: "The basic rule governing the award of damages is that the plaintiff [applicant] is to recover that sum which, so far as money can, will put him in the same position as he would have been in had he not sustained the wrong.... The point has often been made that no rule or formulation is to be applied mechanically, and that the essential thing is to determine what is appropriate and fair and reasonable as between the parties". Sloper v WH Murray Ltd and The Maniatoto County Council (A35/84) Dunedin.
Having regard to all the factors surrounding the breaches as discussed above, I consider it reasonable to award compensation of $2,500.00 to the tenant for the loss of amenity she endured. Landlord’s Claims

Is the tenant responsible for the damage to the premises?

The landlord claims costs from the tenant for replacement curtains and curtain tracks; replacement toilet seat; carpet cleaning and carpet replacement; and wall repairs/painting.
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.
Curtain and curtain tracks: The landlord claims the costs of $407.98 for replacement curtains and tracks because they were mouldy, dirty, had an odour of urine, and some were ripped. New tracks had to be bought to fit the new curtains.
The tenant says there was only one rip to the lounge curtain, and any mould was because the house was mouldy from leaks, and damp rising up from underneath the house.
Based on all the evidence provided I am satisfied that the house was not inherently mouldy. Limited leaks were established above. It is more likely that by keeping the curtains on one side of the house closed all the time, the tenant did not adequately ventilate the house. The photos provided convincing evidence of damage more likely caused by the manner in which the tenant lived in the house with her children and latterly with a dog.
The landlord should be returned to the position they would have been in had the tenant not breached her obligations, and should not be better or worse off. Curtains in rented premises have an estimated useful life of 8 years. They were new at the start of the tenancy so I deduct 56.25% ($229.50) as depreciation, and award $178.48. I have allowed the claim for curtain tracks because the landlord mitigated their loss by choosing economic curtains from the Warehouse. The need for new tracks flowed as a consequence. The cost for both curtains and tracks was very costs effective.
Toilet seat: The landlord claims $74.11 for a replacement toilet seat. The toilet seat was one year old at the end of the etanncy. Although the tenant says she cleaned the toilet regularly the photographs provide compelling evidence of stain and damage to the seat at the end of the etanncy. I find the tenant responsible and award the amount claimed.
Carpet cleaning and replacement: The landlord says the carpet was badly stained throughout the whole house, including stains from urine and faces. The landlord surmises this occurred as a result of the tenant having a dog in the house in the last 6 to 9 months of the tenancy (without his approval). The carpet was new at the beginning of the tenancy. Photographs taken at the beginning and end of the tenancy were provided in support of this claim.
The landlord attempted to clean the carpets but this unsuccessful. The carpet cleaning company advised the carpet and underlay would need to be replaced because the smell of urine could not be removed, and the urine had soaked through the underlay.
The tenant says the dog was kept outside; her 3 children all have disabilities, and the mouldy conditions from under the house set in through the carpet.
The photographs are compelling evidence of staining, including from urine. This is confirmed by the carpet cleaning company: “In my opinion the carpets have been urine soaked in many of the same areas, repeatedly, over a period of time.” I find that the carpet was damaged by the tenant and her family, and from having a dog inside urinating.
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.
I find that keeping a dog on the premises without the landlord’s approval and then allowing the dog inside and to repeatedly urinate over a period of time to be damage caused intentionally. By the tenant allowing this to continue the outcome of irreparable damage to the carpet was an inevitable consequence. The tenant is therefore liable for the costs of replacement carpet of $4,500.00 less depreciation.
In calculating depreciation, I have taken into account the carpet being new at the start of the tenancy and its likely lifespan of 12 years in rented premises. I therefore deduct 37.5% ($1,687.50) and award $2,812.50.
The tenant is also responsible for the carpet cleaning costs of $230. A landlord has an obligation to mitigate their loss (see section 49RTA), so cleaning was an appropriate first step to try to remedy the damage.
Repairs/painting of walls: The landlord claims the costs of $2,015.00 for having the walls in the three bedrooms, hall and bathroom painted. The same set of photographs were relevant. Theses rooms were freshly painted at the beginning of the tenancy.
The tenant says any damage was from normal wear and tear, or from mould.
I am satisfied that tenant and her family caused damage to the walls well beyond normal wear and tear. The damage I observed from the photographs was not mould but physical marks and dirt. Taking depreciation in to account I calculate the deduction based on 56.25% of the estimated useful life of the painted walls having passed (4.5 years of 8 years), and award $755.62. Filing fee
As both parties have been partially successful the filing fees are not reimbursed. Suppression
Neither party sought name suppression. I see the public interest best being served by publication, so suppression is not granted. See section 95A RTA.

Tenancy Tribunal case 4612489 — Property damage at 38B Resolution Road, Welcome Bay, Tauranga 3112

At a glance

Tenancy Tribunal case 4612489 — Property damage at 38B Resolution Road, Welcome Bay, Tauranga 3112

At a glance

Award balance

Claims & awards

Order

Reasons

What compensation should be awarded?

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

Order

Reasons

What compensation should be awarded?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions