What was the outcome of Tenancy Tribunal case 4787517?

The tribunal order states: Raimund Heese must pay Zahra Lightway $320.00 immediately, calculated as

How much money was awarded in case 4787517?

Battery Drawer: $150.00 awarded to landlord; Cleaning: $25.00 awarded to landlord; Compensation: Electricity not metere…: $620.00 awarded to tenant; Painting: $125.00 awarded to landlord

What type of tenancy dispute was case 4787517?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4787517?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10145520-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4787517?

The tribunal order states: Raimund Heese must pay Zahra Lightway $320.00 immediately, calculated as

How much money was awarded in case 4787517?

Battery Drawer: $150.00 awarded to landlord; Cleaning: $25.00 awarded to landlord; Compensation: Electricity not metere…: $620.00 awarded to tenant; Painting: $125.00 awarded to landlord

What type of tenancy dispute was case 4787517?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4787517?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10145520-Tenancy_Tribunal_Order.pdf.

231B McCallum Road, Takaka, RD 1, Takaka 7183 Tenancy Tribunal Case 4787517 — Property damage

Claims and awards in Tenancy Tribunal application 4787517 — net $320.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Painting	$125.00		balance of the claim is otherwise reasonable, and the tenant is ordered to pay $125.00 to the landlord. Battery drawer for underfloor heating
Battery Drawer	$150.00		Battery Drawer
Cleaning	$25.00		51. I accept the landlord claim that the tenant has breached s.44 RTA by subletting the premises without the prior approval of the landlord.
Compensation: Electricity not metered		$620.00	Electricity not metered
Total award	$300.00	$620.00
Net award		$320.00
Bond		$1,000.00
Total payable by Landlord to Tenant		$320.00

Claims and awards in Tenancy Tribunal application 4787517 — net $320.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Painting	$125.00		balance of the claim is otherwise reasonable, and the tenant is ordered to pay $125.00 to the landlord. Battery drawer for underfloor heating
Battery Drawer	$150.00		Battery Drawer
Cleaning	$25.00		51. I accept the landlord claim that the tenant has breached s.44 RTA by subletting the premises without the prior approval of the landlord.
Compensation: Electricity not metered		$620.00	Electricity not metered
Total award	$300.00	$620.00
Net award		$320.00
Bond		$1,000.00
Total payable by Landlord to Tenant		$320.00

Order

Raimund Heese must pay Zahra Lightway $320.00 immediately, calculated as shown in the table below.
The Bond Centre is to pay the bond of $1,000.00 (6210890-002) to the tenant immediately.

Reasons

Both parties attended the hearing on 28 March 2024.
The tenanted premises are at 231 B McCallum Road, Takaka (“the premises”) and consist of a two-level detached building with a separate garage and lean to. There is also a sleep out on the land which the parties agree did not form part of the tenanted premises.
The tenant began living at the premises along with a second tenant in May 2018.
The tenant became the sole tenant and entered into a tenancy agreement with the landlord in December 2018. The tenancy ended following a fire which destroyed much, although not all, of the premises on 24 October 2023. General Law
The Relevant law that applies is found in the Residential Tenancies Act 1986(“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case the landlord must establish that what they are claiming is more likely than not and similarly, the tenant must establish that what they are claiming is more likely than not.
The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “... like anyone who brings an application before a Tribunal or Court, 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 emphasis is mine).
The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.
In this case, both parties have submitted documentary evidence including emails, photos and statements. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered.
Prior to reviewing the evidence of the parties in relation to these claims, I wish to record that I found all the parties to this hearing to be reliable, diligent and honest people. Each party has conceded some things, but strongly refute others. I have absolutely no doubt that all parties came to the hearing with a genuine desire to be helpful. The parties expressed strong feelings of disappointment and stress with how things evolved during the course of the tenancy. Claims
The landlord confirmed at the commencement of the hearing that his claims were; • Compensation for damage. • Compensation for cleaning. • The tenant subletting the premises without landlord approval for which exemplary damages were sought. • Failure to comply with the healthy home standards (“HHS”). • Compensation for the disposal of tenant goods. • Release of the bond and reimbursement of the filing fee.
The tenant claims which were confirmed at the commencement of the hearing were; • Release of the bond. • Failure to separately meter electricity to the premises. • Increasing rent more frequently than allowed for by the RTA. Landlord claims Damages claims.
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 on each and every claim 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 following damage occurred during the tenancy: Dishwasher
The handle to the dishwasher drawer was damaged during the tenancy. The landlord did not know how this occurred. The landlord seeks compensation for $241.22. The landlord says that the dishwasher was installed when the house was first constructed in or about 2010 to 2011.
The tenant says that the drawer came off in her hand whilst attempting to open the dishwasher, in other words, it occurred during the normal course of use.
Scott LJ in Taylor v Webb [1937] 2 KB 283 (CA) at 302 described fair wear and tear in the landlord/tenant relationship as: “... that brought about by the tenant, and other persons present in or on the premises with the consent of the tenant, either unintentionally or as a normal incident of a tenant’s occupation in the course of the ‘fair’ (or ‘reasonable’) use of the premises for any of the purposes for which they were let.”
The burden of proving that the damage caused is more than fair wear and tear is on the landlord. The dishwasher is more than 10 years old. There is no suggestion that the tenant was doing anything other than attempting to open the dishwasher when the incident occurred.
I consider given the age of the dishwasher and the evidence provided by the parties, that the landlord has failed to prove to the required standard that the damage was more than fair wear and tear. The application is dismissed. Paint
The landlord says that the tenant had a plant at the premises. When the plant was removed by the tenant, the plant tendrils, which were attached to the wall, caused damage to the paint surface. The landlord says that this was not in an area of the premises damaged by the fire.
The landlord filled the damaged area, sanded and then applied two coats of paint. The landlord seeks compensation totalling $140.00. That sum is broken down into 1.5 hours for labour at $40.00 per hour and the balance of $80.00 for materials.
The tenant accepts that the damage was caused by her, despite her best efforts to prevent any damage and says that the area damaged was very small.
The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The Tribunal generally sets compensation for landlord labour at $30.00 per hour and I have attached that rate to the landlord claim. The balance of the claim is otherwise reasonable, and the tenant is ordered to pay $125.00 to the landlord. Battery drawer for underfloor heating
The claim is for a replacement battery drawer.
The landlord says that the drawer was broken during the tenancy. The landlord did not know how or when this occurred. The replacement part is no longer available. The landlord claim is for a new drawer. The amount claimed is $300.00 which includes installation.
The tenant simply says that she never used the underfloor heating. She did not know how or when the item may have been damaged.
The damage is more than fair wear and tear and I accept that it occurred at some time during the course of the tenancy. The tenant has not disproved liability for the damage.
I have taken into account betterment in setting the compensation figure. 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.
The tenant is ordered to pay compensation of $150.00. Spa Pool
The landlord said that the spa pool at the premises was damaged during the tenancy. A pool jet was damaged which in turn caused the pool to leak.
The landlord was unable to give evidence on how or when the damage may have occurred.
The repair was carried out by the landlord. The landlord claims his labour of
5 hours at $40.00 per hour with materials of $60.00 being a total of $200.00.
The tenant says that she simply discovered the broken jet and was not sure how it occurred. She said that the spa pool was old and that the damage may have simply occurred as a fault with the pool during the course of normal use.
First, I accept that the damage occurred during the tenancy. The second issue that I must consider is whether the damage occurred as a result of fair wear and tear. On the very limited evidence before me, I am unable to say that the landlord has proven that the damage was more than fair wear and tear. The application is dismissed. Aluminium door and carpet
The landlord was unable to provide evidence as to the compensation figure that should be ordered. As a result, I am simply unable to order any amount of compensation and the application is dismissed. Removal of tenant goods
The landlord seeks compensation of $75.00 for labour in removing mattresses and a bed base left behind at the premises by the tenant. The requirements in the RTA for the disposal of tenant goods are set out in detail at s.62 RTA. The landlord has not complied with those obligations. The landlord has taken the items to the local hospice shop where I anticipate that they were donated.
The tenant says that the items smelt smoke damaged to her. No compensation was sought by the tenant.
In those circumstances, the landlord not having complied with s. 62 RTA, I do not consider it appropriate to order compensation. Subletting
The landlord says that the tenant sublet the premises without landlord approval.
The landlord’s evidence was that the tenancy agreement entered into by the parties in December 2018 did not allow for the subletting of the premises without the landlord’s prior written consent.
The landlord said that at a later date, the tenant asked for the ability to sublet to a couple who had already moved into the premises. The landlord was unable to be specific as to when the couple moved in, but accepted that they may have been at the premises for a matter of days or weeks, but not months, prior to the request being received from the tenant.
The landlord, when asked by the tenant to agree to consent to the subletting, did so.
I accept the landlord claim that the tenant has breached s.44 RTA by subletting the premises without the prior approval of the landlord. But the evidence was that this was for a very brief period prior to the landlord then consenting to the subletting. Any compensation to the landlord in those circumstances would be limited. In my view, the de minimis principle of disregarding matters that are so minor or lacking significance that they can be disregarded applies. The claim is proven, but no order for compensation is made. Cleaning
At the end of the tenancy, the tenant must leave the premises reasonably clean and tidy, See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
The landlord claim relates to the cleanliness of the garage and lean-to only. The landlord says that both were left very dirty. The landlord claims four hours for cleaning at $25.00 per hour to bring the garage and lean-to back to a reasonably clean and tidy condition. The photos of the lean-to indicate that it has been used for firewood storage. The tenant says that prior to leaving the premises, she removed her firewood. The photos provided by the tenant of the garage show it in a condition which I consider to be reasonably clean and tidy. The lean-to could not be said to be reasonably clean and tidy and the tenant is ordered to pay for 1 hours cleaning at $25.00 per hour. Tenant claims Electricity meter
The factual evidence of the parties on this matter seems to align.
The tenant says that at the start of the tenancy, the weekly rent was advertised as being $330.00.
There was a sleepout at the property. That sleepout had a tenant, Mr Brett. Mr Brett’s tenancy did not form part of this tenancy.
The premises and the sleep out were not separately metered at that time. The meter in place measured the electricity usage for both the sleepout and the premises.
The landlord suggested that he reduce the rent for the premises to $320.00 per week and that the power usage for the premises and the sleep out be paid for by the tenant.
The tenant agreed.
This arrangement was ended when the sleep out and premises became separately metered in June 2023.
This precise issue was considered by the Tribunal in Parangi v Zanetich (2021) NZTT 4287072.The Tribunal held; “12.Mr & Mrs Parangi submitted that this was not adequately explained to them when they moved in. They understood that electricity would only ‘kick in’ if the water temperature dropped below a certain level. Mr & Mrs Parangi submitted that it would be unreasonable to expect them to manually control the system.
Section 39(3) of the Residential Tenancies Act 1986 (“RTA”) states that tenants are responsible “for all outgoings that in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises”.
The difficulty for Mr Zanetich is that there is no meter on the tenanted premises and therefore no means to calculate the power use that is exclusively attributable to the tenant’s occupation of the premises.
In Geraghty v Raui [2019] NZDC 3813, the District Court held that in considering whether to require the tenant to pay for outgoings when there is no means for calculating the tenant’s actual consumption the Tenancy Tribunal must have regard to section 85 RTA.
Section 85(2) RTA states: The Tribunal shall determine each dispute according to the general principles of law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give strict effect to legal rights or obligations or legal forms or technicalities
Mr & Mrs Parangi accepted the common sense proposition that they used power when they lived at the property, and they should pay for their reasonable use”.
The landlord has provided calculations based on previous power usage by Mr Brett and also the usage by Mr Brett since the meter was installed to justify the arrangement entered into with the tenant.
For the period at issue, there was no separate meter as required and no means to calculate the power use exclusively attributable to the tenant’s occupation of the premises. Any other calculation is based on assumptions that both previous use and current use are an indica of the use by Mr Brett during the relevant period. That is not the requirement under the RTA.
I must (taking into account the principles set out in s.85 RTA) adopt the common-sense approach that while the tenant lived at the property, she should pay for her reasonable use. For the very reason that requiring a separate meter is necessary, calculating “reasonable use” is not a simple mathematical exercise.
The landlord’s calculations indicate that the rent discount provided to the tenant in return for the responsibility for all power costs was an arrangement substantially in the tenant’s favour. The landlord does refer in his email to the tenant dated 1 May 2023, that the eventual installation of the meter provides “more fairness, rather than guesswork...”
The tenant’s evidence was that she used very little power and that Mr Brett’s power usage was substantial. I record that the sleep out was much smaller than the premises, but that of course need not necessarily be determinative in this matter.
The tenant says that she paid electricity accounts totalling $6,199.54 during the course of the tenancy and seeks reimbursement of half of that amount, being $3,099 77.
The issue is further complicated as the compensation for power is inextricably connected with the rent payable for the premises.
For the period from the commencement of the tenancy in May 2018, the tenant paid rent of $320.00 per week, this was the “discounted figure”, the discount of $10.00 per week having been applied.
From December 2018, the rent was increased to $340.00, but a $20.00 discount was applied by the landlord, meaning that the net amount still being paid by the tenant remained unchanged at $320.00.
Once the electricity meter was installed, the landlord removed the discount and noted in his email to the tenant dated 1 May 2023 that rent would then become $360.00 per week and that a further increase of $40.00 per week would commence on 1 July 2023, bringing the weekly rent to $400.00 per week from that date.
The landlord says that the June 2023 variation was not a rent increase, but the removal of a previous discount and that the increase from 1 July 2023 was in accordance with s.24 RTA, the correct notice having been given.
I consider that the issue of the power use and the rent discount need to be considered separately.
The tenant has benefited by a $10.00 per week reduction in rent for the period May 2018 to December 2018. The tenant has benefited by a $20.00 per week reduction in rent for the period December 2018 to May 2023. I consider that these reductions were agreed upon by the parties and were a “true discount.” As a matter of human nature, the tenant would have been unlikely to agree to take on responsibility for the power costs for Mr Brett without some recompense in her favour.
Taking into account the requirement for the tenant power to be separately metered, the potential power use by both the tenant and Mr Brett and the rent discount already received by the tenant, and the difficulty in accurately assessing use, I order the landlord to compensate the tenant for electricity in the sum of $620.00. Rent increase.
The tenant says that the landlord has increased the rent twice within a month.
Section 24 RTA provides that rent must not be increased within 12 months of the commencement of the tenancy and not within 12 months after the date on which the last increase took effect.
The tenant claim is based on the “rent discount” never having been a true discount. I have already found in this order that the discount was a ”true” discount and accordingly the rent increases referred to by the tenant were not increases, but simply a removal of the discount following the separate metring of the power use. The claim is dismissed.
The tenant applied for name suppression. The tenant has not been wholly or substantially successful in this matter and the application is dismissed.
Neither party has been wholly or substantially successful in this hearing and no order is made for reimbursement of the filing fee.

Tenancy Tribunal case 4787517 — Property damage at 231B McCallum Road, Takaka, RD 1, Takaka 7183

At a glance

Tenancy Tribunal case 4787517 — Property damage at 231B McCallum Road, Takaka, RD 1, Takaka 7183

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions