What was the outcome of Tenancy Tribunal case 4623670?

The tribunal order states: Lisa Fae Wesselson and Robert Shayne Wesselson are to pay Teresa Turner

How much money was awarded in case 4623670?

Cleaning: $83.97 awarded to landlord; Cleaning: $83.87 awarded to landlord; Cleaning: $1,000.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Lawns and Garden Work: $50.00 awarded to landlord; Property Damage: $10.00 awarded to landlord; Rent Arrears: $90.00 awarded to landlord; Hole In Wall: $50.00 awarded to landlord; Rubbish Removal: $150.00 awarded to landlord

What type of tenancy dispute was case 4623670?

The primary dispute was Cleanliness. Related themes: Rent arrears, Property damage.

Where can I read the official tribunal order for case 4623670?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9621398-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4623670?

The tribunal order states: Lisa Fae Wesselson and Robert Shayne Wesselson are to pay Teresa Turner

How much money was awarded in case 4623670?

Cleaning: $83.97 awarded to landlord; Cleaning: $83.87 awarded to landlord; Cleaning: $1,000.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Lawns and Garden Work: $50.00 awarded to landlord; Property Damage: $10.00 awarded to landlord; Rent Arrears: $90.00 awarded to landlord; Hole In Wall: $50.00 awarded to landlord; Rubbish Removal: $150.00 awarded to landlord

What type of tenancy dispute was case 4623670?

The primary dispute was Cleanliness. Related themes: Rent arrears, Property damage.

Where can I read the official tribunal order for case 4623670?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9621398-Tenancy_Tribunal_Order.pdf.

68 East Street, Feilding, Feilding 4702 Tenancy Tribunal Case 4623670 — Cleanliness

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Reasons

Claims and awards in Tenancy Tribunal application 4623670 — net $1,538.28 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$90.00	Rent arrears
Cleaning	$1,000.00	Cleaning
Carpet Cleaning	$83.97	Carpet Cleaning
Lawns and Garden work	$50.00	Lawns and Garden work
Carpet Cleaning	$83.87	Carpet Cleaning
Rubbish removal	$150.00	Rubbish removal
Lock/key replacement	$10.00	Lock/key replacement
Repairs: hole in wall	$50.00	Repairs: hole in wall
Filing fee reimbursement	$20.44	42. The amount ordered is proven.
Net award	$1,538.28
Total payable by Tenant to Landlord	$1,538.28

Both parties attended the hearing.

The tenant has applied for exemplary damages for the landlord issuing a retaliatory notice.

The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Standard of proof

In considering the claims, the “standard of proof” is “on the balance of probabilities.” In other words, the parties must establish with evidence that their claim is “more likely than not.” I consider each of the claims bearing in mind the standard of proof required.

I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented, including oral testimony. I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all the evidence.

Contemporaneous documents such as emails, texts and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.

While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.

By accepting the evidence of one person over that of another person, I am not saying that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.

In Kaipo v Clarke & McCarthy (DC) TT233/02, Judge Mather stated that: “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.” The tenant’s claim

On 16 May 2023 the landlord gave the tenant a notice ending the tenancy on 14 August 2023. The tenant claims the notice was retaliatory.

The tenant filed their application on 4 July 2023. This is 50 days after the landlord’s notice was served on the tenant.

In Realty House Whakatane Ltd v Eschbank [2020] NZDC 16081 Judge Ingram noted: “In my view, s 54 is jurisdictional, and absent an application made within the time limit I consider that the Tenancy Tribunal has no jurisdiction to entertain any application for a declaration that notice is of a retaliatory nature. While I accept that the Tribunal does have the power to extend time limits, it seems to me that those provisions should not ordinarily be used in relation to consideration of issues arising under s 54, with the possible exception of a very short overrun of a day or two caused by circumstances beyond a tenant’s control such as documents being lost in the post or computer or internet outage or inaccessibility.”

The tenant’s application was made some 22 days or over three weeks out of time. This is not “a very short overrun of a day or two”. The Tribunal does not therefore have jurisdiction to consider the tenant’s application.

The tenant’s claim is dismissed.

How much is owed for rent?

The tenancy ended on 21 August 2023 when the tenant returned the keys. The landlord provided rent records which prove the amount owing at the end of the tenancy.

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 and return all keys. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.

The landlord provided video and photographic evidence at the hearing that the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.

The tenant accepted that the video accurately showed the state of the property at the end of the tenancy. The tenant explained that there was a great deal going on their lives at this time and that they offered to come back and clean the property.

It is the tenant’s obligation to leave the property reasonably clean and tidy at the end of the tenancy. The tenant did not do so. The landlord is not under any obligation to extend the time within which a tenant can clean the property and leave it reasonably clean and tidy.

The tenant is therefore liable for the landlord’s reasonable costs of cleaning, rubbish removal and lawn mowing and these amounts are proven.

The landlord’s video and photographic evidence did not show that there was 740 kilograms of rubbish to be removed, although the landlord provided a receipt from the dump for this amount of rubbish. The tenant denied that there can have been that much rubbish.

I have awarded a sum which is appropriate for the quantity of rubbish shown in the landlord’s evidence.

The tenant claimed that the landlord had told them not to worry about damaging the carpets in the property which were old. The landlord confirmed that they were not concerned about the extra wear and tear which a household including four children would inflict on the carpets. This did not extend to a carte blanche for the tenant and their children to dirty and damage the carpet without any regard for their obligations under the RTA.

The video evidence is that the carpets were in a filthy condition and it is appropriate that the landlord be reimbursed for the modest cost of hiring a rug doctor.

The landlord also claimed for the cost of a bug bomb. This claim is dismissed as there was no evidence of there being an infestation of insects caused by the tenant.

The landlord claimed for the costs of reconnecting the power to the property charged by the landlord’s power company. It is an incidence of being a landlord that such minor fees will be incurred from time to time when tenants change. The landlord’s claim for this sum is dismissed.

The landlord explained that the tenant eventually returned two of three keys provided to the tenant at the start of the tenancy. The two keys returned were for the front and back door. The missing key was a duplicate which the tenant acknowledged was broken during the tenancy.

The landlord explained that they chose to change the locks because of the tenant’s advice that the property had been entered twice during the moving out period by an unknown person or persons. This does not establish that it is the tenant’s responsibility to pay for the change of locks.

The landlord’s claim for the lock change is dismissed but a sum is awarded for the replacement of the missing key.

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 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 claimed that the back door was damaged during the tenancy but had no evidence to confirm its condition at the start of the tenancy. The tenant claimed that the back door was already damaged at the start of the tenancy. The onus is on the landlord to prove that the damage occurred during the tenancy. The landlord has failed to do so. The landlord’s claim is dismissed.

The landlord claimed that a bench top in the kitchen was damaged during the tenancy.

The tenant produced a photo at the hearing showing that the area concerned was bubbled at the start of the tenancy. The tenant advised that the small area simply came off during usual use.

The landlord has not persuaded the Tribunal that the damage occurred during the tenancy or was not caused by fair wear and tear. The landlord’s claim is dismissed.

The landlord claimed that there was a hole in the plaster in the laundry which appeared towards the end of the tenancy.

The tenant claimed that the damage was caused by an intruder.

The landlord has persuaded the Tribunal on the balance of probabilities that the damage occurred during the tenancy and was not fair wear and tear.

The amount ordered is proven. Filing fee

Because the landlord has substantially succeeded in their claim, it is appropriate that the tenant reimburse the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4623670 — net $1,538.28 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$90.00	Rent arrears
Cleaning	$1,000.00	Cleaning
Carpet Cleaning	$83.97	Carpet Cleaning
Lawns and Garden work	$50.00	Lawns and Garden work
Carpet Cleaning	$83.87	Carpet Cleaning
Rubbish removal	$150.00	Rubbish removal
Lock/key replacement	$10.00	Lock/key replacement
Repairs: hole in wall	$50.00	Repairs: hole in wall
Filing fee reimbursement	$20.44	42. The amount ordered is proven.
Net award	$1,538.28
Total payable by Tenant to Landlord	$1,538.28