What was the outcome of Tenancy Tribunal case 4776340?

The tribunal order states: Amy Nicole Johnston and James John Harrison must pay Belinda Fabris

How much money was awarded in case 4776340?

Filing Fee: $20.44 awarded to landlord; Replace furnishings: Couch, mattress…: $2,175.00 awarded to landlord

What type of tenancy dispute was case 4776340?

The dispute type was not classified.

Where can I read the official tribunal order for case 4776340?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10251385-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4776340?

The tribunal order states: Amy Nicole Johnston and James John Harrison must pay Belinda Fabris

How much money was awarded in case 4776340?

Filing Fee: $20.44 awarded to landlord; Replace furnishings: Couch, mattress…: $2,175.00 awarded to landlord

What type of tenancy dispute was case 4776340?

The dispute type was not classified.

Where can I read the official tribunal order for case 4776340?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10251385-Tenancy_Tribunal_Order.pdf.

309 Sea View Road, Ostend, Waiheke Island 1081 Tenancy Tribunal Case 4776340 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4776340 — net $695.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Replace furnishings: Couch, mattress, linen, cutlery	$2,175.00	Replace furnishings: Couch, mattress, linen, cutlery
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$695.44
Total payable by Tenant to Landlord	$695.44

Order

Amy Nicole Johnston and James John Harrison must pay Belinda Fabris $695.44 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,500.00 (6405758-006) to Belinda Fabris immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenant has applied for exemplary damages and refund of the bond.
The tenancy began on 1 March 2021 and ended on 23 April 2023. The tenancy lasted for just over two years. Landlord application
The landlord claims for replacement of items that were either damaged or missing at the end of the tenancy.
The landlord claims for replacement of the couch. The couch was new at the beginning of the tenancy and the landlord produced an invoice confirming that it cost $1,399.00. In the documents filed by the landlord she is seeking a contribution of $830.00 for the couch.
The photographs produced by the landlord show that the couch had a considerable amount of staining. A letter from a professional cleaner said that the couch was absolutely filthy and uncleanable.
The tenant said that they had tried to clean the couch with a carpet and upholstery cleaning machine which had removed some of the staining but acknowledged that some stains could not be removed. The tenant also said that the stains were from two years of fair wear and tear.
Given that the tenant had already carried out cleaning on the couch I accept the evidence of the cleaner that the remaining stains are uncleanable.
I do not accept that the stains are fair wear and tear. The useful life of a couch with normal use is more than two years.
The landlord had managed to obtain a significantly cheaper couch to replace the damaged, more expensive one. The landlord’s claim is for less than the cost of replacing the couch likely to take account of the couch being two years old. That is reasonable and is ordered.
The landlord claims for replacement of the mattress. The landlord produced photographs showing the badly stained mattress. The landlord had provided a mattress protector, but the stains penetrated through the protector.
At the hearing the tenant said that the landlord should have provided a waterproof mattress protector to avoid damage to the mattress. The tenant confirmed that there was no attempt to clean the mattress at the end of the tenancy.
The cleaner’s letter said that the mattress was very stained and smelt very mouldy and sweaty and could not be reused.
The landlord produced an invoice showing that the cost of purchasing the bed in August 2020 was $2,474.00. After the tenancy ended the landlord managed to purchase a replacement mattress rather than replace the entire bed. The cost for the replacement mattress was $1,175.00.
The onus is on the tenant to ensure that there is no damage to the chattels beyond fair wear and tear. Again, I do not consider that this is fair wear and tear because the useable life of a mattress should be more than two years. I award the cost of the replacement mattress.
The landlord claimed for linen that was either missing or damaged at the end of the tenancy including a set of sheets, mattress protector, two pillows and two pillow protectors.
At the hearing the tenant acknowledged that one of the sheets was missing and they planned to return one pillow.
The tenant did not mention what happened to the mattress protector but given the state of the mattress I doubt whether it was in a usable state at the end of the tenancy.
The landlord claimed for missing cutlery. The tenant acknowledged that five forks were missing at the end of the tenancy. The landlord has claimed for a replacement cutlery set.
The tenant has suggested that the landlord should have purchased cheaper items from a store that is not located on Waiheke Island. It is not practical for the landlord to do so in the circumstances. Also, if the tenant knew that items were missing the tenant could have sourced replacements prior to the tenancy ending.
Section 40(1)(e)(v) Residential Tenancies Act provides that the tenant shall leave in or at the premises all other chattels provided by the landlord for the use of the tenant.
The tenant had mentioned that there was no chattels list. While the Act states 1 that a list of chattels should be included in the tenancy agreement this is not a situation where there was disagreement over what chattels were provided by the landlord.

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.
On the evidence I consider that the damage occurred during the tenancy and is more than fair wear and tear. I also consider that the damage to the couch and the mattress was caused carelessly. 11 Section 13A(1)(o) Residential Tenancies Act
I have awarded $2,175.00 being the following amounts for damage and missing items: (a) Couch - $830.00; (b) Mattress - $1,175.00; (c) Cutlery - $50.00; and (d) Pillows/sheets etc - $120.00.
I have taken 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 have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Tenant application
The tenant applied for exemplary damages on the basis that the premises are unlawful residential premises 2 .
The issue for the tenant is that there is no council consent for the premises to be used as long-term rental accommodation. He relies on the Auckland Council file which states that the resource consent was granted for the premises as visitor accommodation.
At the hearing the landlord said that she engaged a letting agent who she says checked everything. She acknowledged that the premises (along with another residence) was built for the purpose of short-term accommodation. There is nothing to suggest that the premises were defective or did not comply with building regulations. When the premises were completed travel within New Zealand and from overseas visitors was restricted due to COVID. For this reason, the landlord was unable to rent the premises for short term accommodation. Instead, she let the premises to the tenant who the landlord says was aware that it was intended for short-term accommodation.
The Act defines unlawful residential premises (as it relates to his situation) as premises that are used for occupation for a person as a place of residence but that cannot lawfully be occupied for residential purposes by that person where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c) has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation 3 . 2 Section 78A Residential Tenancies Act 3 Section 78A(2) Residential Tenancies Act
Section 36 provides that the landlord shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.
Section 45(1)(c) provides that the landlord shall comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
The issues raised at the hearing by the tenant were the absence of a smoke alarm and ventilation in the kitchen. There was no clear evidence produced to determine whether smoke alarms had been installed however the Tenancy Agreement signed by the parties in February 2021 states that there is a smoke alarm at the property and the date of the batteries were checked on 1 February 2021. The expiry date for the batteries was recorded as 1 January 2030.
The completion of this part of the tenancy agreement is sufficient evidence for me to reach the conclusion that it was more likely than not that there was a smoke alarm in the premises.
The tenant’s evidence was that he had questioned the landlord about the absence of a smoke alarm, but this was denied by the landlord. There is no supporting evidence from the tenant in relation to this issue. If he raised the issue six months into the tenancy as he said I would expect that the tenant would ensure compliance prior to signing the second agreement in September 2021.
The tenant did not produce any significant evidence in relation to the kitchen ventilation or that any issues about ventilation were raised during the tenancy.
While the tenant claims that this is an unlawful residential tenancy there is no evidence that there was any legal impediment to the occupation of the premises for residential purposes. The documents filed by the tenant refer to resource consent and visitor accommodation. It is not clear what legislation, if any, the landlord has failed to comply with. I note that neither the Building Act 2004 nor the Resource Management Act 1991 mention visitor accommodation.
The onus was on the tenant to establish the claim that the premises were unlawful residential premises and has failed to do so. The tenant’s claim for exemplary damages is dismissed.
Because the landlord has wholly succeeded with the claim, I must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4776340 — net $695.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Replace furnishings: Couch, mattress, linen, cutlery	$2,175.00	Replace furnishings: Couch, mattress, linen, cutlery
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$695.44
Total payable by Tenant to Landlord	$695.44

Order

Amy Nicole Johnston and James John Harrison must pay Belinda Fabris $695.44 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,500.00 (6405758-006) to Belinda Fabris immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenant has applied for exemplary damages and refund of the bond.
The tenancy began on 1 March 2021 and ended on 23 April 2023. The tenancy lasted for just over two years. Landlord application
The landlord claims for replacement of items that were either damaged or missing at the end of the tenancy.
The landlord claims for replacement of the couch. The couch was new at the beginning of the tenancy and the landlord produced an invoice confirming that it cost $1,399.00. In the documents filed by the landlord she is seeking a contribution of $830.00 for the couch.
The photographs produced by the landlord show that the couch had a considerable amount of staining. A letter from a professional cleaner said that the couch was absolutely filthy and uncleanable.
The tenant said that they had tried to clean the couch with a carpet and upholstery cleaning machine which had removed some of the staining but acknowledged that some stains could not be removed. The tenant also said that the stains were from two years of fair wear and tear.
Given that the tenant had already carried out cleaning on the couch I accept the evidence of the cleaner that the remaining stains are uncleanable.
I do not accept that the stains are fair wear and tear. The useful life of a couch with normal use is more than two years.
The landlord had managed to obtain a significantly cheaper couch to replace the damaged, more expensive one. The landlord’s claim is for less than the cost of replacing the couch likely to take account of the couch being two years old. That is reasonable and is ordered.
The landlord claims for replacement of the mattress. The landlord produced photographs showing the badly stained mattress. The landlord had provided a mattress protector, but the stains penetrated through the protector.
At the hearing the tenant said that the landlord should have provided a waterproof mattress protector to avoid damage to the mattress. The tenant confirmed that there was no attempt to clean the mattress at the end of the tenancy.
The cleaner’s letter said that the mattress was very stained and smelt very mouldy and sweaty and could not be reused.
The landlord produced an invoice showing that the cost of purchasing the bed in August 2020 was $2,474.00. After the tenancy ended the landlord managed to purchase a replacement mattress rather than replace the entire bed. The cost for the replacement mattress was $1,175.00.
The onus is on the tenant to ensure that there is no damage to the chattels beyond fair wear and tear. Again, I do not consider that this is fair wear and tear because the useable life of a mattress should be more than two years. I award the cost of the replacement mattress.
The landlord claimed for linen that was either missing or damaged at the end of the tenancy including a set of sheets, mattress protector, two pillows and two pillow protectors.
At the hearing the tenant acknowledged that one of the sheets was missing and they planned to return one pillow.
The tenant did not mention what happened to the mattress protector but given the state of the mattress I doubt whether it was in a usable state at the end of the tenancy.
The landlord claimed for missing cutlery. The tenant acknowledged that five forks were missing at the end of the tenancy. The landlord has claimed for a replacement cutlery set.
The tenant has suggested that the landlord should have purchased cheaper items from a store that is not located on Waiheke Island. It is not practical for the landlord to do so in the circumstances. Also, if the tenant knew that items were missing the tenant could have sourced replacements prior to the tenancy ending.
Section 40(1)(e)(v) Residential Tenancies Act provides that the tenant shall leave in or at the premises all other chattels provided by the landlord for the use of the tenant.
The tenant had mentioned that there was no chattels list. While the Act states 1 that a list of chattels should be included in the tenancy agreement this is not a situation where there was disagreement over what chattels were provided by the landlord.

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.
On the evidence I consider that the damage occurred during the tenancy and is more than fair wear and tear. I also consider that the damage to the couch and the mattress was caused carelessly. 11 Section 13A(1)(o) Residential Tenancies Act
I have awarded $2,175.00 being the following amounts for damage and missing items: (a) Couch - $830.00; (b) Mattress - $1,175.00; (c) Cutlery - $50.00; and (d) Pillows/sheets etc - $120.00.
I have taken 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 have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Tenant application
The tenant applied for exemplary damages on the basis that the premises are unlawful residential premises 2 .
The issue for the tenant is that there is no council consent for the premises to be used as long-term rental accommodation. He relies on the Auckland Council file which states that the resource consent was granted for the premises as visitor accommodation.
At the hearing the landlord said that she engaged a letting agent who she says checked everything. She acknowledged that the premises (along with another residence) was built for the purpose of short-term accommodation. There is nothing to suggest that the premises were defective or did not comply with building regulations. When the premises were completed travel within New Zealand and from overseas visitors was restricted due to COVID. For this reason, the landlord was unable to rent the premises for short term accommodation. Instead, she let the premises to the tenant who the landlord says was aware that it was intended for short-term accommodation.
The Act defines unlawful residential premises (as it relates to his situation) as premises that are used for occupation for a person as a place of residence but that cannot lawfully be occupied for residential purposes by that person where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c) has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation 3 . 2 Section 78A Residential Tenancies Act 3 Section 78A(2) Residential Tenancies Act
Section 36 provides that the landlord shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.
Section 45(1)(c) provides that the landlord shall comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
The issues raised at the hearing by the tenant were the absence of a smoke alarm and ventilation in the kitchen. There was no clear evidence produced to determine whether smoke alarms had been installed however the Tenancy Agreement signed by the parties in February 2021 states that there is a smoke alarm at the property and the date of the batteries were checked on 1 February 2021. The expiry date for the batteries was recorded as 1 January 2030.
The completion of this part of the tenancy agreement is sufficient evidence for me to reach the conclusion that it was more likely than not that there was a smoke alarm in the premises.
The tenant’s evidence was that he had questioned the landlord about the absence of a smoke alarm, but this was denied by the landlord. There is no supporting evidence from the tenant in relation to this issue. If he raised the issue six months into the tenancy as he said I would expect that the tenant would ensure compliance prior to signing the second agreement in September 2021.
The tenant did not produce any significant evidence in relation to the kitchen ventilation or that any issues about ventilation were raised during the tenancy.
While the tenant claims that this is an unlawful residential tenancy there is no evidence that there was any legal impediment to the occupation of the premises for residential purposes. The documents filed by the tenant refer to resource consent and visitor accommodation. It is not clear what legislation, if any, the landlord has failed to comply with. I note that neither the Building Act 2004 nor the Resource Management Act 1991 mention visitor accommodation.
The onus was on the tenant to establish the claim that the premises were unlawful residential premises and has failed to do so. The tenant’s claim for exemplary damages is dismissed.
Because the landlord has wholly succeeded with the claim, I must reimburse the filing fee.

Tenancy Tribunal case 4776340 — Tenancy dispute at 309 Sea View Road, Ostend, Waiheke Island 1081

Tenancy Tribunal case 4776340 — Tenancy dispute at 309 Sea View Road, Ostend, Waiheke Island 1081

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions