Published tribunal order
Tenancy Tribunal case 4705376 — Rent arrears at 84 Racecourse Road, Sockburn, Christchurch 8042
Decided 8 Mar 2024 · Published 8 Mar 2024 · Application 4705376
Landlord favoured
- Rent arrears
- Healthy homes
Order
- Hayden John O'Brien must pay Chinwai Lau $5,920.85 immediately, calculated as shown in the table below.
- The parties’ claims are otherwise dismissed.
- The Bond Centre is to pay the bond of $2,200.00 (5493068-002) to Chinwai Lau immediately.
Reasons
- Both parties attended the hearing.
- The landlord has applied for rent arrears, compensation, exemplary damages, payment of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenant has applied for a work order, compensation, exemplary damages and return of the bond. End of Tenancy Situation and Rent
- This tenancy began in January 2022 but there is dispute over when it ended. The landlord claims that it ended on 16 October 2023. The tenant claims that it ended on 30 September 2023.
- Related to this issue is the issue of the condition of the premises when the tenancy ended and whether the tenant was occupying the premises then.
- In my view, these issues can be resolved by considering the communications between the parties in September and October 2023.
- There were messages between the parties at that time. Relevantly, they begin with the tenant telling the landlord on 12 September that he would be happy to extend the tenancy for another 2-4 years.
- It soon becomes apparent that the tenant will be moving out. On 3 October he says that he will have everything moved out “this weekend and next week”.
- On 8 October he says that he’s still coming down from Nelson.
- On 9 October he says that he moved out 6 weeks earlier, he hasn’t been back since then and that his flatmate was living there. He adds that “from what I’ve been told it’s in a hell of a mess outside and it needs cleaning up”. He goes onto say that he isn’t sure about the inside, because he hasn’t been inside for the same time (which must be a reference to the six weeks).
- The landlord then says that he intends entering the premises without the tenant being present or handing over possession. The tenant responds by repeating that he hasn’t been inside for six weeks, so he’d rather go and “sort it” before the landlord goes there. He adds that he will pay an extra weeks rent.
- On 15 October the landlord asks whether the tenant left the house key in the letter box to which the tenant says “they got put in letter box last night. I’m in Nelson”.
- The tenant disputes the landlord’s claim that the premises were left unclean, damaged and with many of the landlord’s chattels either damaged or missing. When I pointed out to him that he told the landlord that he had not been inside the premises for six weeks (being from about the beginning of September), he said that he meant to write six days and the autocorrect changed it to six weeks.
- I don’t accept that. For one thing there is no reason why the autocorrect would do that. There is no similarity between the two words ‘days’ and ‘weeks’, and if the word ‘days’ was misspelt, it would not be corrected to weeks. For another, the tenant says in two separate emails that he hasn’t been there for six weeks. For a third thing, the messages would not make sense if the tenant was meaning six days not six weeks. It is obvious from what was being said about the condition of the premises that he had not been living in the premises for considerably longer than six days.
- To be frank, the tenant’s attempt to give the messages an entirely different meaning to their plain and obvious meaning smacks of desperation as well as a belief, it would seem, that this Tribunal is gullible. There is no good reason to give the messages anything other than their plain meaning.
- The messages prove that the tenancy ended on 16 October when the landlord took possession of the premises. I have therefore awarded rent arrears to that date.
- They also prove that the tenant was not living at the premises when the tenancy ended and had not been living there for many weeks. He was not aware of the condition of the premises when the tenancy ended and so he cannot give evidence about its condition or what landlord chattels were or were not left at the premises.
- As well, the tenant’s vain attempt to avoid the adverse (for him) implications of the messages, undermines his credibility generally. The Landlord’s Claims
- The landlord has produced photographs taken at the start of the tenancy and at the end of it. They show the general condition of the premises and the numerous landlord chattels that were provided with the tenancy. Those chattels are also listed in the tenancy agreement.
- I accept that the premises were damaged during the tenancy as evidenced by the photographs and that many of the landlord’s chattels were damaged or missing from the premises at the end of the tenancy. But I do not accept the values that the landlord has put on the claims. Compensation for the loss and damage to the chattels must be assessed by reference to the second-hand value of the chattels, not the cost of new replacements.
- The landlord’s evidence in support of the costs he has incurred or will incur is unsatisfactory. He produced a quote from a project manager. The costs in that quote are substantially higher than the reasonable costs that one would expect to pay to tradespeople and contractors for the work and materials. It might be convenient for the landlord use a project manager to organise and manage the work, but it is not acting reasonably to minimise the costs. The tenant should not, therefore be required to pay for that convenience.
- In some cases, the evidence in support of damage was unsatisfactory or was absent altogether. The onus is on the landlord to prove his claims and if the evidence does not prove them to the required standard, there can be no award.
- I find that the evidence that the landlord has produced of the cost of remedying damage to the premises is unreliable and I must therefore make my own assessment of what is reasonable compensation.
- The tenant produced some photographs of the premises showing it to be in reasonably good condition which he said were taken at the end of September 2023. Having found that the tenant was at the premises at that time I must question that.
- Following the hearing, the tenant provided the photographs with dates purporting to be when they were taken. I question that as well. Some of the photographs showing different rooms of the premises appear to have been taken on the same date at the precisely the same time which would not have been possible.
- In any case, the tenancy did not end for another two weeks after the end of September, and it is the condition of the premises then that I am concerned with. Relevant Law
- 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.
- The tenant must not carelessly or intentionally damage 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.
- 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). I note that the premises were insured and that the excess for damage to the premises was $550 per insured event.
- 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). The rent was $550 per week and so four weeks rent is $2,200.
- The limits on recovery referred to above apply to damage to the premises including facilities such as for cooking and laundry. They do not apply to chattels.
- 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.
- 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.
- The Tribunal must consider betterment and depreciation where appropriate. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, the tribunal must consider the age and condition of the items at the start of the tenancy and their likely useful lifespan. Failure to Quit
- The landlord claims exemplary damages for the tenant’s failure to return the premises to him. This refers to the unlawful act of failure to quit (leave) the premises. But that applies only where the tenant was required to leave. Here, there was no termination notice. Termination was dealt with informally and ultimately by consent. So, there was no failure to quit and no unlawful act. Cleaning
- I accept that the premises needed cleaning after the tenancy ended. The landlord’s photographs prove that. They show that there was dog faeces on the carpet in places. The landlord said that the carpet was contaminated by dog urine and that his insurers recommended replacing the carpet. But there was no evidence from the insurers.
- The landlord did the cleaning himself and given the state of the premises shown in the photographs an award of $400 for cleaning is reasonable. Carpet
- The evidence did not prove that the carpet needed to be replaced. But it would have needed cleaning at least and also some repair because there was a small section cut out of it. I have therefore awarded $500 for cleaning and repair of the carpet. Wall Damage
- The evidence did not prove the claim for wall damage. Rubbish
- The landlord produced invoices for skip hire for green waste and for general waste.
- There was no evidence to support the claim for green waste.
- I accept that there was general rubbish to remove including the damaged chattels. I have therefore awarded the cost of the skip for general waste. Damage and Chattels
- The following is a table showing the chattels and parts of the premises that the landlord claims were damaged during the tenancy or where chattels were missing or damaged at the end of the tenancy. It sets out my assessment of the value of the landlord’s loss for each claim and, where necessary, a short reason for the assessment. ItemDamaged/MissingReasonLoss Display ShelfDamaged$150 Bambillo BedDamagedBeyond repair$1,500 50” TVDamagedLacking evidence of damage $0 Toilet SeatsDamagedLacking evidence of damage $0 Reclining ChairDamaged$150 Window HandlesDamagedLacking evidence of damage $0 5-Seater Couch and Ottoman DamagedSome pre-existing damage $500 TV CabinetDamaged$200 HeaterDamaged$150 Bedside TableDamagedMinor damage$0 Dressing tableDamagedMinor damage$0 FridgeDamagedSome pre-existing damage $100 Washing MachineDamaged$200 Wooden BenchDamaged$150 Heat PumpNot workingLacking evidence of tenant damage $0 OvenDamagePre-existing damage $100 Window Glass (x2)Damage$300 Door damage (x2) (painting) Damage$500 Handrail and window frame Damage$100 Vinyl damageDamageLacking evidence of damage $0 Carpet damageSoiled and damagedLimited to cleaning and repair $500 GardenNo evidence provided $0 Two bedside tablesMissing$200 Queen bed with headboard Missing$500 TV CabinetDamagedEvidence lacking$0 TV ReceiverMissing$99 Two two-seater sofas Missing$700 PicturesMissing$150 ClockMissing$59 Outdoor table and chairs Missing$100 Lawn mower Missing$300 Petrol containerMissing$20 Total$6,728 Tenant’s Claims Work Order
- The tenancy has ended so there is no basis on which to make a work order. Healthy Homes Information
- There is a Healthy Homes information form provided with the tenancy agreement, but it has not been completed. The landlord has therefore failed to comply with the requirements to provide the tenant with confirmation as to compliance with the healthy homes standards including insulation requirements. That is an unlawful act which can attract an award of exemplary damages of $750 for each breach.
- Tenants are entitled to that information, and it is important that it is provided to them so that they are informed of the situation before they agree to the tenancy.
- An award of $1,000 exemplary damages is appropriate. Healthy Homes Compliance
- The tenant claims that the premises did not comply with healthy homes standards. The most recent standards applied to this tenancy from 27 April 2022. The insulation standard has applied since 1 July 2019 and so applied from the beginning of the tenancy.
- I accept the tenant’s evidence that the insulation in the roof space is unlikely to be compliant. There are no measurements of the thickness of the insulation installed there but it does appear to be old and well below the top of the ceiling rafters. It is also incomplete in places. There was no evidence from the landlord as to compliance.
- The written evidence provided by the tenant states that there is no evidence of insulation under the floor but there is no evidence that it is not there either. In any case, the photographs of the premises strongly suggest that there is no or insufficient access under the floor to install insulation. This claim has therefore not been proved.
- There was little evidence of non- compliance in any other respect and so the only non-compliance that has been proved is the inadequacy of the insulation in the roof space. There was some insulation there, but it is apparent that the landlord has not checked the insulation and ensured that it is compliant. An award in the sum of $1,000 is appropriate for the breach. Bond
- The landlord lodged the bond four months after receiving it from the tenant and so there has been a breach of the Act in that respect. It should have been lodged within 23 working days.
- There was no evidence that it was an intentional breach. It was most likley an inadvertent failure and so no award of exemplary damages can be made. Quiet Enjoyment
- The garage for the premises was not included in the tenancy and the landlord and sometimes people on his behalf came to the premises from time to time to remove articles from it. The tenant consented at the time, but he had some complaints such as the lights being left on, people spending an unnecessary amount of time in the garage and drinking in the garage.
- I accept that there were times when the landlord and her agents did not act entirely properly but I do not find that there was any intentional breach or that there was any harassment. Therefore, there can be no award of exemplary damages.
- I also find that an award of compensation is not warranted. Condition of Premises Generally
- The tenant complains that premises suffered from some defects and that the landlord was in breach of his maintenance obligations. The evidence for that was not satisfactory.
- The tenant said that the roof leaked but there was no photographic evidence showing water leaking through the roof or into the habitable areas of the premises. There were photographs that appeared to show some mould, but it was difficult to discern where that was or what had caused it.
- The tenant produced an email that he purportedly sent to the landlord complaining about leaks and some other things, but there was no evidence that it was sent. The landlord denied receiving any complaints apart from one about a faulty tap which was fixed. The email produced was forwarded to the tenant in January 2024, after the tenancy ended.
- Overall, the evidence does not establish to the required standard that the landlord failed to comply with his maintenance obligations or that the tenant should be compensated. I note that the tenant indicated that he wanted to extend the tenancy and there was no mention of any maintenance issues at that time. Filing Fee
- I make no order for payment of filing fees. Result
- The tenant has been left with a liability to the landlord and so the bond will be paid to the landlord and the tenant must pay the remaining liability to the landlord.