What was the outcome of Tenancy Tribunal case 4804497?

The tribunal order states: Lisa Anahera Fraider must pay Alexander Lezaic $560.44 immediately,

How much money was awarded in case 4804497?

Smoke Alarms: $40.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $500.00 awarded to landlord; Gate: $250.00 awarded to landlord; Property Damage: $750.00 awarded to landlord

What type of tenancy dispute was case 4804497?

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

Where can I read the official tribunal order for case 4804497?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10377128-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4804497?

The tribunal order states: Lisa Anahera Fraider must pay Alexander Lezaic $560.44 immediately,

How much money was awarded in case 4804497?

Smoke Alarms: $40.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $500.00 awarded to landlord; Gate: $250.00 awarded to landlord; Property Damage: $750.00 awarded to landlord

What type of tenancy dispute was case 4804497?

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

Where can I read the official tribunal order for case 4804497?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10377128-Tenancy_Tribunal_Order.pdf.

27 Evans Road, Glen Eden, Auckland 0602 Tenancy Tribunal Case 4804497 — Property damage

Claims and awards in Tenancy Tribunal application 4804497 — net $560.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$500.00	Rent arrears
Repairs: Paint and wall repairs	$750.00	Repairs: Paint and wall repairs
Electrical fittings replacement/repair: Three smoke alarms	$40.00	Electrical fittings replacement/repair: Three smoke alarms
Repairs: Gate	$250.00	Repairs: Gate
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$560.44
Total payable by Tenant to Landlord	$560.44

Order

Lisa Anahera Fraider must pay Alexander Lezaic $560.44 immediately, calculated as shown in table below.
Lisa Anahera Fraider’s application is dismissed.

Reasons

Alexander Lezaic attended the hearing; Lisa Anahera Fraider did not attend the hearing. I am satisfied Ms Fraider has been correctly served notice of this hearing, and on that basis I conducted the hearing despite her absence.
Mr Lezaic has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
Mr Lezaic raised a preliminary matter regarding jurisdiction. He stated that he and Ms Fraider signed a flat/house sharing agreement with the intention that Ms Fraider would live at the property as a “flatmate”.
Mr Lezaic explained that Ms Fraider and her one child lived in the self-contained basement flat of a house that he was renovating. The flat had been fully renovated approximately three years prior to Ms Fraider’s tenancy. Mr Lezaic did not live at the same property with them, and nor did anyone else.
The Residential Tenancies Act, 1986 (the “RTA”) section 4 provides the following: “This Act applies to every tenancy for residential purposes except as specifically provided.”
Section 5 of the RTA then lists exclusions to section 4, however, I am not persuaded that any of the exclusions apply to Ms Fraider’s tenancy.
For this reason, the Residential Tenancies Act, 1986 (the “RTA”) applies to this tenancy and the Tenancy Tribunal has jurisdiction to hear the dispute.

How much is owed for rent?

The tenancy ended on 7 June 2023. Mr Lezaic provided rent records which prove the amount owing at the end of the tenancy was $500.00, being rent for the last week.

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.
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.
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 Lezaic stated that the downstairs basement flat was fully renovated three years prior to Ms Fraider moving in. He provided photographs that show a modern style renovation at the beginning of the tenancy. He described the premises as being “mint”.
Mr Lezaic stated that during the tenancy Ms Fraider made two or three fist sized holes in the walls. She also repainted a lot of the skirting and architrave in the flat, and she painted some of the breeze block walls in a small storage room. Mr Lezaic provided photographs which show the patched holes and some skirting and architrave painted a dark grey. No receipts were provided.
Mr Lezaic is of the opinion that at the end of the tenancy the whole flat needed to be repainted. He got a quote to repaint the whole flat for $7,979.00, but then repainted it himself with the help of his brother and a builder who he paid to help him. Mr Lezaic said it took the three of them three weeks, “give or take” to repaint the whole flat.
I consider the poor painting that Ms Fraider did to be intentional damage, but I consider the intentional damage is limited to the holes in the wall, the painting of the skirting and architrave, and the removal or painting over of the drips on the walls and tiles that Ms Fraider was responsible for. I do not agree with Mr Lezaic’s claim that the whole flat needed repainting.
Mr Lezaic stated that Ms Fraider caused damage to two internal door frames. He provided photographs of the door frames with split timber. No receipts were provided. The cost of repairs is not proved.
When the flat was renovated Mr Lezaic installed a new oven that had a rotisserie attachment and a tray. Mr Lezaic stated that at the end of the tenancy these pieces were missing. Mr Lezaic has not replaced them but estimates the replacement cost is $150.00. This estimate is not sufficiently reliable for me to make an order in this regard.
Mr Lezaic stated three smoke alarms were removed during the tenancy. He provided a photograph that shows a smoke alarm base screwed to the wall, but no smoke alarm. He stated that they cost $20 each, but he did not provide a receipt. He stated he replaced the three smoke alarms and his seeking compensation of $60.00 in total.
Mr Lezaic provided a photograph of a broken area of fibrolite baseboard which he says Ms Fraider was responsible for. This hasn’t yet been repaired, and no award can be made for this damage as an accurate cost is not before the Tribunal.
Mr Lezaic claimed that during the tenancy, Ms Fraider caused damage to a steel-framed electric opening gate. Ms Fraider then removed the gate and began cutting it with an electric grinder in an effort to take it away and get it repaired. When Mr Lezaic saw this happening, he intervened before anymore “damage” could be done to the gate. He then bought an arc-welder and other equipment and repaired the gate himself. He said he spent half a day working on the gate and is claiming $2,000.00 for his labour and other expenses. I am persuaded that the claim for his labour in repairing the gate is made out. No receipts for materials have been provided, and this claim is not proved.
The amounts awarded take into account betterment and depreciation. That is to say, the landlord should be returned to the position he 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.
At the beginning of the tenancy Ms Fraider paid a bond of $1,000.00 to Mr Lezaic. Because Mr Lezaic believed the agreement was as flatmates, he did not lodge the bond with the Bond Centre, but he retained it himself, and has not yet repaid any of it to Ms Fraider.
This amount is deducted from the award.
The amounts ordered are proved.
Because Alexander Lezaic has substantially succeeded with the claim I have reimbursed the filing fee.

Claims and awards in Tenancy Tribunal application 4804497 — net $560.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$500.00	Rent arrears
Repairs: Paint and wall repairs	$750.00	Repairs: Paint and wall repairs
Electrical fittings replacement/repair: Three smoke alarms	$40.00	Electrical fittings replacement/repair: Three smoke alarms
Repairs: Gate	$250.00	Repairs: Gate
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$560.44
Total payable by Tenant to Landlord	$560.44

Order

Lisa Anahera Fraider must pay Alexander Lezaic $560.44 immediately, calculated as shown in table below.
Lisa Anahera Fraider’s application is dismissed.

Reasons

Alexander Lezaic attended the hearing; Lisa Anahera Fraider did not attend the hearing. I am satisfied Ms Fraider has been correctly served notice of this hearing, and on that basis I conducted the hearing despite her absence.
Mr Lezaic has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
Mr Lezaic raised a preliminary matter regarding jurisdiction. He stated that he and Ms Fraider signed a flat/house sharing agreement with the intention that Ms Fraider would live at the property as a “flatmate”.
Mr Lezaic explained that Ms Fraider and her one child lived in the self-contained basement flat of a house that he was renovating. The flat had been fully renovated approximately three years prior to Ms Fraider’s tenancy. Mr Lezaic did not live at the same property with them, and nor did anyone else.
The Residential Tenancies Act, 1986 (the “RTA”) section 4 provides the following: “This Act applies to every tenancy for residential purposes except as specifically provided.”
Section 5 of the RTA then lists exclusions to section 4, however, I am not persuaded that any of the exclusions apply to Ms Fraider’s tenancy.
For this reason, the Residential Tenancies Act, 1986 (the “RTA”) applies to this tenancy and the Tenancy Tribunal has jurisdiction to hear the dispute.

How much is owed for rent?

The tenancy ended on 7 June 2023. Mr Lezaic provided rent records which prove the amount owing at the end of the tenancy was $500.00, being rent for the last week.

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.
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.
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 Lezaic stated that the downstairs basement flat was fully renovated three years prior to Ms Fraider moving in. He provided photographs that show a modern style renovation at the beginning of the tenancy. He described the premises as being “mint”.
Mr Lezaic stated that during the tenancy Ms Fraider made two or three fist sized holes in the walls. She also repainted a lot of the skirting and architrave in the flat, and she painted some of the breeze block walls in a small storage room. Mr Lezaic provided photographs which show the patched holes and some skirting and architrave painted a dark grey. No receipts were provided.
Mr Lezaic is of the opinion that at the end of the tenancy the whole flat needed to be repainted. He got a quote to repaint the whole flat for $7,979.00, but then repainted it himself with the help of his brother and a builder who he paid to help him. Mr Lezaic said it took the three of them three weeks, “give or take” to repaint the whole flat.
I consider the poor painting that Ms Fraider did to be intentional damage, but I consider the intentional damage is limited to the holes in the wall, the painting of the skirting and architrave, and the removal or painting over of the drips on the walls and tiles that Ms Fraider was responsible for. I do not agree with Mr Lezaic’s claim that the whole flat needed repainting.
Mr Lezaic stated that Ms Fraider caused damage to two internal door frames. He provided photographs of the door frames with split timber. No receipts were provided. The cost of repairs is not proved.
When the flat was renovated Mr Lezaic installed a new oven that had a rotisserie attachment and a tray. Mr Lezaic stated that at the end of the tenancy these pieces were missing. Mr Lezaic has not replaced them but estimates the replacement cost is $150.00. This estimate is not sufficiently reliable for me to make an order in this regard.
Mr Lezaic stated three smoke alarms were removed during the tenancy. He provided a photograph that shows a smoke alarm base screwed to the wall, but no smoke alarm. He stated that they cost $20 each, but he did not provide a receipt. He stated he replaced the three smoke alarms and his seeking compensation of $60.00 in total.
Mr Lezaic provided a photograph of a broken area of fibrolite baseboard which he says Ms Fraider was responsible for. This hasn’t yet been repaired, and no award can be made for this damage as an accurate cost is not before the Tribunal.
Mr Lezaic claimed that during the tenancy, Ms Fraider caused damage to a steel-framed electric opening gate. Ms Fraider then removed the gate and began cutting it with an electric grinder in an effort to take it away and get it repaired. When Mr Lezaic saw this happening, he intervened before anymore “damage” could be done to the gate. He then bought an arc-welder and other equipment and repaired the gate himself. He said he spent half a day working on the gate and is claiming $2,000.00 for his labour and other expenses. I am persuaded that the claim for his labour in repairing the gate is made out. No receipts for materials have been provided, and this claim is not proved.
The amounts awarded take into account betterment and depreciation. That is to say, the landlord should be returned to the position he 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.
At the beginning of the tenancy Ms Fraider paid a bond of $1,000.00 to Mr Lezaic. Because Mr Lezaic believed the agreement was as flatmates, he did not lodge the bond with the Bond Centre, but he retained it himself, and has not yet repaid any of it to Ms Fraider.
This amount is deducted from the award.
The amounts ordered are proved.
Because Alexander Lezaic has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4804497 — Property damage at 27 Evans Road, Glen Eden, Auckland 0602

At a glance

Tenancy Tribunal case 4804497 — Property damage at 27 Evans Road, Glen Eden, Auckland 0602

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions