What was the outcome of Tenancy Tribunal case 4731269?

The tribunal order states: Christine Marie Cameron must pay Hendrik Jacobus Pienaar the sum of

How much money was awarded in case 4731269?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4731269?

The primary dispute was Rent arrears. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Property damage, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4731269?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10607089-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4731269?

The tribunal order states: Christine Marie Cameron must pay Hendrik Jacobus Pienaar the sum of

How much money was awarded in case 4731269?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4731269?

The primary dispute was Rent arrears. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Property damage, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4731269?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10607089-Tribunal_Order.pdf.

40 Rye Street, Otautau, Otautau 9610 Tenancy Tribunal Case 4731269 — Rent arrears

Order

Christine Marie Cameron must pay Hendrik Jacobus Pienaar the sum of $1,475.62 immediately calculated in the table below. Payable to tenant: Failing to maintain the property $2,500.00 Less tenant costs payable to the landlord: Ceiling repairs and paint in lounge 150.00 Wall and door repairs and painting Bedroom 1 700.00 Wall repairs and paint in the Bedroom 2 700.00 Wall and Window in bedroom 3 100.00 Sleep out wall repairs and painting 700.00 Front Door 83.36 Curtain contribution 150.00 Storeroom (study) walls 352.80 Laundry Door 150.00 Section clean up and tip fees 420.00 Window 469.46 Total tenant costs to the landlord $3,975.62 Tenant is to pay the sum of $1,475.62

Reasons

Ms Cameron attended the hearing with her son who also resided at the property for a period of time during the term of the tenancy. Mr Pienaar also appeared with his wife.
This matter was last before the Tribunal on the 29 th April 2024 and was adjourned to a full day hearing on the 22 nd July 2024.
At the original hearing the summary of issues to be determined were considered and the case was adjourned. At the hearing on the 22 nd July I heard the evidence in relation to each claim and will now determine each issue.
The background to this tenancy is that the tenancy commenced in August 2009 however there was no signed tenancy agreement on that date, rather inspection reports were signed at different times by the landlord and the tenant, the most recent being on the 29 June 2019. There were very few reports as the landlord did not carry out routine inspections throughout the lengthy tenancy.
The tenancy came to an end on 26 th October 2023, thus the tenancy was in place for a fourteen year period. The tenancy ended when the landlord advised that they wished to sell and gave the tenant the opportunity to purchase the property. This was declined and the tenant advised that she would be moving out on the 26 October 2023. The tenant filed the application on 9 November 2023 and the landlord filed a counter claim on the 24 April 2024.
The tenant raised a number of issues, and the landlord filed a counter claim stating that the home is in its current state due to the actions of the tenant. The tenant also gave evidence that rentals were difficult to come by and she did not raise concerns during the tenancy. She stated she would have stayed if the landlord wasn’t wishing to sell.
The issues to be determine in relation to both claims are: a) Did the landlord fail to provide contact details to the tenant and did the landlord leave the country and fail to appoint an agent? b) Did the landlord fail in his obligations in relation to maintaining the property pursuant to s45(1A) of the residential tenancies Act in relation to the following: i)Windows ii)Laundry iii)Mould iv)Smoke detectors c) Was there rent arrears outstanding and if so how much? d) Is the excess payable by the tenant ($700 for each claim) for each of the following: i.Carpet in the lounge ii.Ceiling repairs and paint in lounge iii.Wall and door repairs and painting in bedroom 1 iv.Bedroom 2 carpet v.Wall repairs and paint in the bedroom 2 vi.Bedroom 3 carpet vii.Wall and window in bedroom 3 viii.Hallway carpet ix.Sleepout x.Bathroom xi.Laundry e) Is the tenant liable for the following damage that was not covered by insurance? i.Front Door $83.36 ii.Bedroom 1 $634.40 iii.Hallway 1, $664.30 iv.Storeroom carpet $335.29 v.Storeroom walls $352.82 vi.Washing Line $420.00 vii.Curtains x3 total $417.00 viii.Laundry Door $650.00 ix.Ceilings repainted in bedroom 1 and 2 , $156.00 x.Reglazing of three windows $1408.38 xi.Guttering on sleepout $146.14 xii.Bathroom mirror $79.00 xiii.Door and Door frames $227.34 xiv.Removal of carpet due to cat urine $150.00 xv.Section clean up $200.00 xvi.Tip fees $46, $78, $96 (to remove tires) xvii.Loss of Income $3,060.00 due to inability to relet or sell. Did the landlord fail to provide contact details to the tenant and did the landlord leave the country and fail to appoint an agent?
Christine Marie Cameron claims that Mr Pienaar had been overseas for longer than the Act permits without appointing an agent.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A Residential Tenancies Act 1986.
Ms Cameron explained that she did not know a specific time or occasion, nor that she knew that he was definitely away from the country for a specified period of time. She submitted that he was difficult to get hold of, and one example was back in 2021 when the water cylinder burst and she could not get hold of him. She contacted the local plumber, and given the small community he contacted the landlord himself.
It was submitted that the plumber used the same phone number back then that Ms Cameron had.
There is insufficient evidence to support an award of exemplary damages in this case for this claim. This case involves a tenancy that lasted a significant period of time and it looks as though Mr Pienaar largely left Ms Cameron to it, making very rare inspections and the tenant was largely left to her own devises. The community is small and there is no evidence that the landlord has strictly failed in his obligations on this point and this issue is dismissed. Did the landlord fail in his obligations in relation to maintaining pursuant to s45(1A) of the Residential Tenancies Act
Christine Marie Cameron claims that the landlord has breached his obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must 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.
I shall deal with each of the claims separately. However, regarding each issue, the fact is that both landlords and tenants are responsible for keeping the property in good condition. A landlord should carry out regular inspections and carry out repairs promptly. Windows
The photo evidence is concerning. There appears to be significant rotting and there is a hole that goes straight through to the outside in one of the bedrooms, one of the bedroom windows won’t shut properly and one of the main windows is rotten and was causing a draft.
This property is an old property and I do not accept from the photo evidence that the tenants’ actions have contributed to this wear and tear and the damage to the rotten surrounds. In considering the age of the property it is hard to see that this is the fault of the tenants.
Having considered all of the evidence on this case I find that the landlord has failed to maintain this property and make an award accordingly. Laundry
Ms Cameron claims that the laundry was in a ‘outhouse’ and the door was always left open for ventilation as the dog used this room for shelter. The tenant used a dryer in that room. The tenant noticed issues with the wall and contacted the landlord. He pulled apart part of the wall and noticed significant moisture. This may have been from the use of the dryer.
The evidence is that this was in 2019 and the landlord advised that he had the dry wall to remedy, and he never came back to fix it. The evidence is also that he was going to make an insurance claim.
The laundry was left in this condition until the tenant moved out in October 2023. The landlord claims the excess for this damage in his claim.
Ms Cameron had an obligation to inform the landlord of this damage when she noticed it and, on the evidence, I find she did so. The landlord then proceeded to remove the wall and it was never fixed at the time and the laundry remained in that state until the tenant vacated, and the landlord then claimed through his insurance.
Having considered all of the evidence I am satisfied that the landlord failed to action this in a timely manner and has failed to maintain the property, thus I am satisfied on the balance of probabilities and award damages accordingly. Mould
The tenant raises concerns at the level of mould in the property. Again, the photos are very concerning.
There is no evidence as to its cause and both parties to some extent. must take responsibility for the condition the home was in, From the evidence it does not appear that Ms Cameron has attempted to clean and deal with the issue over a long period of time.
Whilst the tenant claims that the Landlord ‘says it’s a healthy home, it isn’t”, that the landlord failed to attend the home for four years, and there has a breach of the Healthy Homes Standards. This broad statement of a breach is not substantiated and backed with the evidence I would expect to see for such an alleged breach. Therefore, the claim is dismissed. Smoke detectors
Ms Cameron gave evidence that the landlord did not replace the smoke detectors and she herself was required to purchase the alarms.
Having considered all of the evidence in relation to the landlord failing to maintain this property I make a total award of damages in relation to all issues as shown in the table above.

Was there rent arrears outstanding and if so how much?

Mr Pienaar withdrew this claim at the commencement of the hearing as this issue was resolved. Is the excess payable by the tenant ($700 for each claim) for each of the following: Carpet in the lounge Ceiling repairs and paint in lounge Wall and door repairs and painting in bedroom 1 Bedroom 2 carpet Wall repairs and paint in the bedroom 2 Bedroom 3 carpet Wall and window in bedroom 3 Hallway carpet Sleepout wall repairs and painting Bathroom vanity Laundry walls and floor
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.
Mr Pienaar claims that the above listed items were damaged during the tenancy and covered by his insurance, and he claims the $700.00 excess for each of the itemised repairs.
I have to consider in all of the claims if the damage is more than fair wear and tear, and if the damage was intentional or careless.
I must take into account betterment and depreciation. 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, I must take into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
I shall deal with each claim accordingly. Carpet in the lounge
In the correspondence that Mr Pienaar wrote to the tenant with her options re sale of the property, the third option was , and I quote “ to prepare for the sale, we plan to undertake any necessary repairs, replace the carpeting, repaint and enhance the landscaping for the property”
Mr Pienaar has received a payment from his insurance for ‘damages’ to the carpets and claims for the insurance excess and cleaning of the carpets. Further claims are made for the ‘damages’ that were below the amount of excess payable and these items are referred to below.
I am not satisfied that the replacement of the carpet was required due to the actions of Ms Cameron’s being intentional or careless . As stated, the tenancy was over a fourteen year period. Given the comment also that the carpets were to be replaced in any event I do not accept the claims are proven in any of the carpet claims, including cleaning and the claims are dismissed. Ceiling repairs and paint in lounge
The damage was for marked and scratched wallpaper and small holes as a result of something being hung on the wall. There was also damage to the architraves with paint chips and markings. A tile in the ceiling was also broken.
The actual costs of this repair is $7,681.14.
Having considered the evidence, I accept a portion of this to be fair wear and tear however, the tenant is also liable for some of the damage and therefore I must award a contribution for this claim. Wall and door repairs and painting Bedroom 1
The photo evidence showed the damage is significant in areas in this room. The cost to repair was $2,480.93. The walls had scratches that appear to have been from the tenant’s cat and were marked and the door frame and lock damaged. I accept this claim in its entirety for the wall and door repairs as being more than fear wear and tear and on the evidence the tenant has not proven non liability. Bedroom 2 carpet
I refer to my decision in paragraph 42-44 and again dismiss this claim. Wall repairs and paint in the Bedroom 2
The photo evidence submitted is of a repair to the wall that needed to be remedied as the repair job was not acceptable. The actual cost of this was $1,717.33. I accept this claim as proven accordingly. Bedroom 3 carpet
I refer to my decision in paragraph 42-44 and again dismiss this claim. Wall and window in bedroom 3
Again, given the age and having consideration to fair wear and tear I do not accept that the damage is entirely deliberate from the tenant. I accept that there are some scratches to the wallpaper however I do not accept that the full amount should be awarded. The windowsill is certainly an issue of fair wear and tear and the failure to maintain given the evidence before me. Given the evidence on this matter I make an award to contribute to the excess accordingly. Hallway carpet
I refer to my decision in paragraph 42-44 and again dismiss this claim. Sleepout wall repairs and painting
The claim is for the damaged wallpaper in the sleepout. The photo evidence shows a number of areas where the wall paper appears to have been deliberately torn. I do not accept on the evidence that this is fair wear and tear. I therefore accept this claim and make an award accordingly. Bathroom vanity
I do not accept that the tenants’ actions caused the issues with the vanity, rather I accept this was fair wear and tear and as a result I dismiss this claim. Laundry walls and floor
I refer to my decision at paragraph 21-25 above and for those reasons I dismiss this claim. It is surprising that the landlord took so long to make an insurance claim and have the laundry repaired. Ms Cameron advised Mr Pienaar when she noticed something was wrong and Mr Pienaar accepted it was an insurance claim at the time of the event. I do not accept the tenant to have been careless nor that the damage was intentional, and the claim is dismissed.
Mr Pienaar further claims for items not covered by insurance as follows. Front Door $83.36
The damaged claimed for is the repair work carried out and the amount of scratched to the paint service and into the door itself. I accept that this claim is proven and is more than fair wear and tear and accept the claim for the full amount. Bedroom 1 $634.40
This is for the carpet in this room that was less than the cost of the excess and therefore not claimed. However, I dismiss this claim and again refer to my decision is paragraph 42-44. Hallway 1, $664.30
This claim was again for the damage to carpet that was under the value of the insurance excess. Again, I refer to the decision at paragraph 42-44 regarding carpets and dismiss accordingly. Storeroom (study) carpet $335.29
I refer to my decision in paragraph 42-44 and again dismiss this claim. Storeroom (study) walls $352.82
The damages are again torn and scratched wallpaper. The photo evidence confirms this and I accept the amount of the claim to remedy accordingly Washing Line $420.00
On the evidence before me I do not accept that following the length of this tenancy with no information about the condition of the washing line at the start of the tenancy that this is proven, this part of the claim is dismissed. Curtains x3 total $417.00
The photos submitted of curtains in the bedroom was covered in car fur. Arguably they could have been cleaned, however given the age of them, it is unlikely that they would have been able to be cleaned. As a result of the cat fur, I will award a small contribution to the damage having considered depreciation. Laundry Door $650.00
This was a room “separate” from the house and was left open to ventilate and for the dog who slept in the room for shelter. It clearly required repair based on the photos submitted. I accept that a contribution should be made given the scratches are more than fair wear and tear however also in consideration of its age. Ceilings repainted in bedroom 1 and 2 , $156.00
Given the insurance information clearly states that the insurance covered “wall and door repairs and painting’ in bedroom one and two, I do not accept this further claim and dismiss this accordingly. Reglazing of three windows $1408.38
Mr Pienaar claims for the reglazing of three windows, including the sleep out, cat door and laundry door windows. The laundry door has already been claimed.
I accept the amount for the one based on the evidence before me and make the award of $469.46 Guttering on sleepout $146.14
There is insufficient evidence that this damage was caused by the tenant rather than the weather and fair wear and tear. This claim is dismissed. Bathroom mirror $79.00
A tooth brush holder had been glued on the corner of the mirror. I do not accept that this would have justified an entirely new mirror and the claim is dismissed. Door and Door frames $227.34
I refer to the above decisions in relation to doors and insurance claims and do not accept that a further claim is proven, and this part of the claim is therefore dismissed. Removal of carpet due to cat urine $150.00
I refer to my decision in paragraph 40-42 and again dismiss this claim. Section clean up $200.00
Based on the evidence before me I accept that the section required a significant clean up and accept that the tip fees are due and owing. Tip fees $46, $78, $96 (to remove tires)
I refer to the above decision and award the fees accordingly. Loss of Income $3,060.00 due to inability to relet or sell.
Mr Pienaar claims for a loss of income due to the inability to relet. I do not accept that the inability to relet or sell is due to the tenant’s action. This property lacked attention and the failure of the landlord to maintain has also contributed to this and I do not accept that this part of the claim is proven.

Tenancy Tribunal case 4731269 — Rent arrears at 40 Rye Street, Otautau, Otautau 9610

Tenancy Tribunal case 4731269 — Rent arrears at 40 Rye Street, Otautau, Otautau 9610

Order

Reasons

Was there rent arrears outstanding and if so how much?

Order

Reasons

Was there rent arrears outstanding and if so how much?