Published tribunal order
Tenancy Tribunal case 4663929 — Property damage at Unit 4, 2568 Paparoa-Oakleigh Road, RD 1, Paparoa 0571
Decided 9 Feb 2024 · Published 9 Feb 2024 · Application 4663929
Landlord favoured
- Property damage
- Exemplary damages
Order
- Ashley Josiephine Ghio to pay Melanie Miller and Russell Miller $930.00 from the bond, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,980.00 (6516616-003) immediately apportioned as follows: Melanie Miller and Russell Miller: $930.00 Ashley Josiephine Ghio: $1,050.00
Reasons
Background
- The adjournment order dated 24 November 2023 sets out the background to the applications.
- The second hearing took place in Whangarei on 26 January 2023. Both parties attended the hearing. Tenant application Failure to lodge bond
- The tenant paid a bond of $1,980.00 at the start of the tenancy in September 2019.
- Landlords are obliged to pay bonds to the Bond Centre within 23-working days of receipt 1 . Failure to do so is an unlawful act 2 . Exemplary damages of up to $1,500.00 can apply.
- Melanie Miller and Russell Miller acknowledged that they forgot to lodge the bond. Each thought that the other had done it.
- The landlords breached their duty to pay the bond to the Bond Centre within 23- working days. It is appropriate to award exemplary damages.
- In considering an award of exemplary damages the Tribunal must have regard to 3 : a. The intention of the person who committed the unlawful act; and b. The effect of the unlawful act; and c. The interests of the person against whom the act was committed; and d. The public interest.
- In this instance: a. I accept that the failure to lodge the bond was a genuine oversight by the landlords. b. Discovering that her bond had not been lodged cause some anxiety for the tenant. 1 Section 19(1)(b) Residential Tenancies Act 1986 (“RTA”) 2 Section 19(2) RTA 3 Section 109 RTA c. The bond was not lodged until October 2023, after the end of the tenancy and four years after it was paid to the landlord. d. There is a legitimate public interest in ensuring that landlords deal properly with tenant’s bonds.
- Having regard to those factors, I will award exemplary damages of $500.00. Peace, comfort, and privacy
- Landlords must not cause of permit any interference with the tenant’s reasonable peace, comfort, and privacy 4 .
- A breach of this duty, in circumstances that amount to harassment of the tenant, is an unlawful act 5 .
- The main issue raised by Ms Ghio under this heading is instances of the landlords talking about her, or to her, in a disrespectful or belittling manner.
- I heard evidence from Ms Barbu and from Ms James.
- The recurrent themes in the submissions from Ms Ghio, Ms Barbu, and Ms James are that: a. The landlords accused Ms Ghio of causing damage to the property. b. The landlords ignored / brushed off any issues that Ms Ghio raised. c. The landlords made comments about Ms Ghio to other people. d. The landlords repeatedly commented that WINZ paid the rent and bond, and not Ms Ghio.
- The landlords submitted that: a. They are respected people in the community. b. They were generous to Ms Ghio. c. There was damage to the property beyond fair wear and tear. d. The allegations of disrespectful / derogatory comments are false, exaggerated, or taken out of context. e. They were aware that Ms Ghio was receiving assistance from WINZ, and they have no prejudices about that.
- Most of the alleged inappropriate comments were verbal, but Ms Ghio did provide copies of some comments in writing, such as a text message from Dr Miller to Ms James which states that Ms Ghio “doesn’t weed spray or maintain 4 Section 38(2) RTA 5 Section 38(3) RTA the garden or anything outside the house” and that “WINZ pays rent not Ashley”.
- The Tribunal must take an objective approach to allegations of breach of quiet enjoyment / harassment. The question is not whether Ms Ghio felt harassed (I accept that she did), the question is whether the proven actions by the landlord amount to behaviour that is so inappropriate that it goes beyond lack of civility or rudeness and into a breach of a legal duty.
- Landlords should be cautious when talking about tenants or tenancy-related matters to other people. Landlords (and tenants) have a right to free expression 6 , but landlords also have a special duty in respect of the “reasonable privacy” of their tenants.
- My finding is that the proven comments and behaviour of the landlords do not amount to an unlawful interference with the tenant’s reasonable peace, comfort, and privacy.
- Landlords are entitled to take the view that the tenant has caused damage to the property. Tenants are entitled to disagree.
- The text message to Ms James could have been more thoughtfully worded, but the message was sent in the context of a broader exchange, and it would be unjust to isolate a few words.
- The relationship between the landlords and the tenant deteriorated in the latter stages of the tenancy. There were some tense exchanges between the landlord and tenant, which are understandable in that context. Of course that does not give license to landlords to abuse tenants, but the alleged comments by the landlord are not in that category.
- The comments identified by Ms Ghio, even if proven, do not amount to harassment.
- There is no basis for an award of compensation of exemplary damages under this heading. Window latches
- Ms Ghio submitted that there were problems with broken window latches during the tenancy. She submitted that she raised the issue many times with the landlords, but they failed to take any action.
- The landlords submitted that no issues were raised until July 2022. The issue raised was a broken stay on a window in the lounge. They fixed that problem promptly. 6 New Zealand Bill of Rights Act 1990, s 14
- There is very little written evidence about this issue. On 4 July 2022, Dr Miller sent Ms Ghio a message stating “Be in touch about sorting the window latches”. Nearly a year later on 22 June 2023 there is another message from the landlord “we were waiting for your signal for a date for Russ to fix the new window latches”.
- The landlords’ final inspection photographs show several broken window latches.
- The landlords submitted that “the stays were fixed in the last year of the tenancy in the front lounge window a couple of times by the landlord, they had broken. The opinion of the landlords is the latches had more than wear and tear from the family”.
- The evidence about this issue is limited and conflicting. There were clearly some broken latches during this tenancy, but it is not possible to determine: a. Whether the damage was a landlord maintenance issue or carelessness by the tenant. b. Whether there are any specific instances of the tenant notifying the landlord of the need to replace a damaged window latch and the landlord failing to address the repair within a reasonable time.
- The tenant has the burden of proof.
- My finding is that there is no reasonable basis for an award of compensation under this heading. Landlord application
- The landlords’ application seeks compensation for: a. Damage to a section of guttering. b. Repair & painting of ‘plaster marks’ on walls. c. Damage to flooring. d. Reimbursement of plumbing cost (septic system).
- In any claim for damage the landlord must prove that the damage occurred during the tenancy and that the damage is beyond fair wear and tear.
- If the landlord proves those things, the tenant is liable for the reasonable cost of repair unless the tenant can prove that the damage was caused by something other than a careless or intentional action by themselves or by someone who was at the property with their consent.
- The tenant’s liability for careless damage is limited to the lesser of the amount of the landlord’s insurance excess or the equivalent of four weeks’ rent 7 . a. Damage to a section of guttering
- Mr Miller noticed damage to a section of guttering when he was mowing the lawns.
- The landlords contacted Ms Ghio about the damage. Ms Ghio responded that she was not aware of the damage, and she did not know how it may have happened. The only possibility that she could think of was that her child may have hit it with a ball.
- Unfortunately, this comment was seized upon by the landlords as an admission of liability, which led to subsequent arguments and misunderstandings.
- The landlords were concerned that the damage may have led to water ingress into the wall at the location of the gutter damage.
- The landlords are not pursuing any costs in respect of that, only replacement of the damaged section of guttering.
- Landlords do not have to prove how damage happened. They only have to prove that the damage is beyond fair wear and tear and that it occurred during the tenancy.
- I am satisfied that the damage is beyond fair wear and tear. There is a visible crack in the guttering. Something has impacted it.
- Ms Ghio carried out some repairs to the gutter, which were effective in the short term. However, I accept that the section of guttering needed to be replaced.
- The landlord’s claim for $300.00 (materials and labour) is fair and reasonable. The tenant is liable for that cost. b. Plaster marks on walls
- The landlords submitted that there were numerous holes in the walls that the tenant had attempted to repair, leaving white plaster patches on the walls.
- Ms Ghio submitted that there were two holes in walls accidentally caused during her tenancy.
- Ms Ghio had a plasterer patch those holes and prepare them for painting. She also asked the plaster to also patch any minor “wear and tear” marks on the walls. 7 Sections 49A and 49B RTA
- The landlords had the interior of the property re-painted at the end of the tenancy. Their claim seeks a portion of those costs.
- I accept Ms Ghio’s statement that there were only two holes in walls and the other plaster marks relate to lesser damage. It is difficult to know what type of damage was present before the plastering work was done – whether it was in the category of fair wear and tear or whether it was in the category of careless damage.
- In any event, the fact that the property was returned with multiple patch marks meant that the landlord had to paint those areas. The landlord is entitled to reasonable compensation reflecting the cost of painting those areas.
- I accept that painting over a repaired part of a wall often necessitates painting the entire wall to avoid a ‘patchy’ finish.
- In this instance the landlord painted all of the interior of the property, in part because of the patches but in part as general maintenance - the walls were last painted about six years ago.
- Weighing those considerations I consider that reasonable compensation for the damage that Ms Ghio is legally liable for is $500.00. c. Damage to flooring
- The property has hardwood native timber floors.
- Similar considerations apply in respect of this part of the landlords’ claim.
- The landlords’ photographs show some damage to flooring that occurred during the tenancy – some nail polish on the floor in a bedroom, and two or three light coloured stains / marks (the cause of which is unknown).
- The only way to remediate the floor is to sand it back and re-seal it. The cost of this work would be more than $6,000.00.
- That cost does not fairly reflect the extent of the tenant’s liability. The landlords seek a portion of the sanding and re-sealing cost ($1,470.45).
- There is damage for which the tenant is liable, but the size of the affected areas is relatively small.
- I will award compensation of $650.00. Reimbursement of plumber cost (septic tank)
- Near the end of the tenancy Ms Ghio raised a concern about a septic smell.
- The landlords arranged for a plumber to investigate the septic system. The plumber could not find any faults with the system.
- The claim seeks reimbursement of the cost of the plumber’s attendance.
- Tenants are entitled (indeed obliged) to let landlords know of any maintenance issues at the property.
- I accept that Ms Ghio’s complaint was genuine.
- The landlord must bear the cost of investigating the issue. That is part of their maintenance obligation. Filing fee, bond, name suppression
- Both parties have been partially successful in their applications, and I will award both parties the filing fee of $20.44 8 .
- Per the table above, the net outcome is that the tenant is to pay the landlords $930.00. The landlords will receive that amount from the bond. The balance will be released to the tenant.
- The tenant sought name suppression. The Tribunal must grant name suppression to any party who has “substantially succeeded” in the proceedings 9 . Ms Ghio has been successful in part, but she has not substantially succeeded in the proceedings.
- The Tribunal has a discretion to grant name suppression to any party “having regard to the interests of the parties and to the public interest”.
- In this instance there are no particular interests of the parties that would justify name suppression. General concerns about the risks of publication on finding future tenancies do not justify suppression 10
- Therefore I will not grant name suppression in this instance.