What was the outcome of Tenancy Tribunal case 4804434?

The tribunal order states: Craig Boswell and Robyn Boswell must pay Karen Hughes and George Knight

How much money was awarded in case 4804434?

Property Damage: $1,800.00 awarded to landlord; Property Damage: $1,300.00 awarded to landlord; Rent Arrears: $30.00 awarded to landlord

What type of tenancy dispute was case 4804434?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4804434?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10455814-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4804434?

The tribunal order states: Craig Boswell and Robyn Boswell must pay Karen Hughes and George Knight

How much money was awarded in case 4804434?

Property Damage: $1,800.00 awarded to landlord; Property Damage: $1,300.00 awarded to landlord; Rent Arrears: $30.00 awarded to landlord

What type of tenancy dispute was case 4804434?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4804434?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10455814-Tenancy_Tribunal_Order.pdf.

93 Middleton Road, Kew, Dunedin 9012 Tenancy Tribunal Case 4804434 — Property damage

Claims and awards in Tenancy Tribunal application 4804434 — net $970.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 28/1/2024	$30.00	Rent arrears to 28/1/2024
Replacement curtains	$1,800.00	Replacement curtains
Replacement fence – insurance excess	$1,300.00	Replacement fence – insurance excess
Net award	$970.00
Total payable by Tenant to Landlord	$970.00

Claims and awards in Tenancy Tribunal application 4804434 — net $970.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 28/1/2024	$30.00	Rent arrears to 28/1/2024
Replacement curtains	$1,800.00	Replacement curtains
Replacement fence – insurance excess	$1,300.00	Replacement fence – insurance excess
Net award	$970.00
Total payable by Tenant to Landlord	$970.00

Order

Craig Boswell and Robyn Boswell must pay Karen Hughes and George Knight $970.00 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,160.00 (6206446-016) to Karen Hughes and George Knight immediately.
The application by Craig Bowell and Robyn Boswell for compensation of $1,440.00 and exemplary damages is dismissed.
The application by Karen Hughes and George Knight for further rent arrears and compensation is dismissed.

Reasons

All parties attended the hearing.
The tenant seeks compensation by way of a rent refund of $1,440.00 and exemplary damages for failure to maintain the premises, failure to comply with Healthy Homes Standards and unlawful notice.
The landlord cross applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenancy began on 17/6/2019 and ended when the tenants vacated on 8/2/2024 after the landlord gave 7 days notice due to damage from a fire on 28/1/2024. Tenants’ claim

Did the landlord breach their obligations?

Craig Boswell and Robyn Boswell claim that the landlord failed to maintain the premises due to the state of the bedroom windowsills or comply with Healthy Homes Standards for draughts.
The tenant suggested that the damage to the bedroom windowsills and to some extent the curtains was caused by water ingress through the sills.
In support of their claim the tenant provided photographs and a letter from the painter engaged by the landlord to paint the sills.
The tenant wanted a refund of rent of $1,440.00 for the draughts in the bedrooms.
On the other hand, the landlord disputed the bedroom windowsills let in water but rather considered the damage was from condensation due to lack of ventilation.
In support of their position the landlord provided a letter from the same painter and photographs.
Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair.
Section 45(1)(bb) requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The HHS does provide exemptions in specific circumstances.
Breaching 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).
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 120 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
There is no dispute that there is water damage to the windows sills. What is at issue is the extent and cause of this damage.
An inspection after the tenancy ended supports that the bedroom meets healthy homes compliance standards with no draughts to the outside and no gaps to the interior of the property.
During the tenancy the landlord engaged a painter to paint the windowsill and investigated whether the windows needed replacing.
I am not persuaded by the evidence of the tenant that the landlord failed to maintain the premises due to the state of the windowsills or failed to comply with healthy homes standards for draughts.
The landlord has not committed an unlawful act and the tenants’ claim for exemplary damages fails.

Was the termination notice invalid?

The tenant submitted the landlord’s notice to vacate the premises due to the fire damage was unlawful because they did not believe the premises were uninhabitable.
As the premises consisted of two storeys and the fire had only damaged the basement level, the tenant felt they could still live in the upstairs area where the damage was minimal.
The tenant suggested they were very stressed by the 7 day time limit to move and the attitude of the landlord about the liveability of the premises.
In response, the landlord submitted they relied on the advice of the insurance assessor that the premises were unliveable, there was structural damage to the upstairs and walls would need to be removed for the repairs.
The landlord highlighted that the NZ Fire Service had recommended the electricity be disconnected after the fire, and only two plugs had been reconnected to allow the tenant to clean the premises.
Section 59(1) provides where otherwise than as a result of a breach of the tenancy agreement the premises are destroyed, or so seriously damaged as to be uninhabitable the rent shall abate and either party may give notice terminating the tenancy.
The period of notice to be given by a landlord is not less than 7 days.
Subsection (4) provides where the premises are partially destroyed or so seriously damaged as to be uninhabitable the rent shall abate and either party may apply for an order terminating the tenancy.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
There is no dispute that the premises were only partially not totally destroyed by the fire.
The issue for the Tribunal therefore is whether the premises were “so seriously damaged as to be uninhabitable”.
The Residential Tenancies Act 1986 does not define the term uninhabitable and dictionary definitions of habitable and uninhabitable do not help.
Various District Court decisions have looked at this issue and made it clear that whether the premises are uninhabitable will be decided on a case by case basis.
Understandably the tenant wished to continue living in the premises because they considered the upstairs was not damaged and the premises had been their home for a long time.
On the other hand, the landlord relied on the opinion of the insurance assessor about health and safety due to the smoke damage, structural damage and loss of water and electricity.
The fire has created an extremely unfortunate situation for all parties.
I am persuaded by the evidence that after the fire the premises were uninhabitable due to the damage caused. It would have been very difficult if not impossible for the tenant to continue living with their family in the premises without utilities and with the smoke and structural damage.
As highlighted by the landlord the timescale for repairs is unknown and no work has yet been commenced.
I find the landlord has not committed an unlawful act by giving the tenant notice under section 59(1) and the claim for exemplary damages fails. Landlord’s claim

How much is owed for rent?

The landlord sought rent arrears of $670.00 to 8/2/2024, being the date, the tenant finally vacated after receiving notice.
The landlord provided rent records which showed the rent in arrears at the date of the fire was $30.00.
As the rent abates from the date of the fire, 28/1/2024, the tenant is not liable for any rent after that date.
An award has been made for $30.00 rent arrears owing before the fire.

Did the tenant comply with their obligations at the end of the tenancy?

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. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986.
The landlord sought compensation of $1,456.25 as follows: a. $532.00 for cleaning b. $613.00 for garden work and rubbish removal c. $280.00 for skip hire d. $31.25 for a missing smoke alarm battery.
In support of their claim the landlord provided quotes, photographs and invoices from the gardener and for the skip and smoke alarm battery.
On the other hand, the tenant submitted in the seven days allowed for them to vacate and remove their possessions from a large four bedroomed house they did the best they could in the circumstances.
I find the landlord is estopped from claiming that the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
It would be inequitable and out of all proportion to the circumstances of this situation to expect the tenant to do anything other than remove their belongings and themselves from the property after the fire.
The compensation claim fails.

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.
The landlord sought compensation of $12,263.64 as follows: a. $1,800.00 insurance excess for replacement of the front fence b. $345.00 for repairs the bathroom door c. $86.25 for replacement of a broken bathroom vanity light d. $4,235.00 for repairs to bedroom windowsills e. 908.39 for replacement plants f. $3,589.00 for replacement curtains g. $1,300.00 insurance excess for fire damage to the premises.
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.
In support of the claim for damages the landlord provided further quotes and photographs.
The tenant agreed some damage had been caused to curtains other than those in the bedroom, by the cat and offered $1,800.00 in compensation.
In addition, the tenant agreed the fence had been removed in 2022 and had not been reinstated at the time the tenancy ended.
However, the tenant disputed causing damage to the windowsills or that any plants were damaged by the structure erected to store wood.
The tenant also denied causing the fire.
I consider the evidence is clear from the report of the Fire Investigator that the cause of the fire was “undetermined”.
The claim for the insurance excess of $1,300.00 for the fire damage fails.
I am persuaded by the evidence that damage occurred to curtains and the fence during the tenancy.
An award has been made for the insurance excess for the fence.
However, I have reduced the excess by $500.00 because although the removal of the fence was intentional the landlord did not take active steps to mitigate loss pursuant to section 49. I therefore consider it reasonable to award the excess only for careless damage.
In making the award for the curtains 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, their likely useful lifespan and the offer from the tenant.
The landlord has failed to persuade me that the damage to the bathroom door, bathroom vanity light, bedroom windowsills or plants is anything more than fair wear and tear.
In particular with regard to the windowsills I note the contradictory evidence provided by both parties from the same painter.
While it is a possibility the windowsill damage was due to lack of ventilation by the tenant the landlord is required to establish this on the balance of probabilities and the evidence falls short of doing so.

Should compensation and or exemplary damages be awarded?

As I have found the landlord did not commit any unlawful acts no exemplary damages can be awarded.
Although the landlord has been partly successful with the claim, I have declined to exercise the discretion to award the filing fee because of the significant delay by the landlord in filing a claim.
No suppression is granted to the landlord because they have only partly succeeded with the claim, and I do not consider it is in the public interest to do so.
The tenant did not seek name suppression.

Tenancy Tribunal case 4804434 — Property damage at 93 Middleton Road, Kew, Dunedin 9012

At a glance

Tenancy Tribunal case 4804434 — Property damage at 93 Middleton Road, Kew, Dunedin 9012

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord breach their obligations?

Was the termination notice invalid?

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord breach their obligations?

Was the termination notice invalid?

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions