What was the outcome of Tenancy Tribunal case 4813237?

The tribunal order states: The Bond Centre is to pay the bond of $3,060.00 (6435455-006) immediately

How much money was awarded in case 4813237?

Breach Of Quiet Enjoyment: $100.00 awarded to tenant; Property Damage: $2,117.00 awarded to landlord

What type of tenancy dispute was case 4813237?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4813237?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10511097-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4813237?

The tribunal order states: The Bond Centre is to pay the bond of $3,060.00 (6435455-006) immediately

How much money was awarded in case 4813237?

Breach Of Quiet Enjoyment: $100.00 awarded to tenant; Property Damage: $2,117.00 awarded to landlord

What type of tenancy dispute was case 4813237?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4813237?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10511097-Tenancy_Tribunal_Order.pdf.

10 John Burn Road, Takanini, Takanini 2110 Tenancy Tribunal Case 4813237 — Property damage

Claims and awards in Tenancy Tribunal application 4813237 — net $2,017.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet replacement	$2,117.00		Carpet replacement
Breach of quiet enjoyment		$100.00	Breach of quiet enjoyment
Total award	$2,117.00	$100.00
Net award	$2,017.00
Total payable by Tenant to Landlord	$2,017.00

Order

The Bond Centre is to pay the bond of $3,060.00 (6435455-006) immediately apportioned as follows: Gramax Property Management Limited: $2,017.00 Ivanka Maria Pileff-Fasso and Ryan Garry Burgess: $1,043.00

Reasons

Both parties attended the hearing on 27 June 2024.
On 20 February 2024 the tenants applied for refund of the bond, exemplary damages for breach of quiet enjoyment, and exemplary damages for unlawful entry.
On 21 February 2024 the landlord applied for the cost of replacement carpet.
The tenancy ran from 1 February 2023 to 31 January 2024. Damage to the carpet
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, 41 and 49B of the Residential Tenancies Act 1986 (the Act)).
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 4 weeks' rent.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to 4 weeks' rent.
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.
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.
In the application form, the landlord claimed $6,172.05 for replacement carpet and underlay. The exit inspection report dated 1 February 2024 referred to yellow marks on the carpet with a strong smell in the lounge on the second floor. The tenants paid for this part of the carpet (about 2 square meters) to be replaced, together with another area of carpet on the stairway where the carpet had come away. They produced invoices for $943.00 and $368.00. They also had the carpet professionally cleaned. Subsequently the landlord complained that the urine odour was still there and provided videos at the hearing showing staining under the carpet in various rooms.
The tenants said they were asked to repair a small area of carpet, which they agreed to, only to discover that the landlord always intended to replace the carpets throughout the house. The tenants said that the patch repair was done, a quote for the carpet replacement obtained, and an insurance claim declined before the landlord raised any concerns about odour. Previous inspections had not raised any concerns.
I note that the landlord first raised a persistent issue with odour in an email on 13 February 2024. This also referred to an insurance claim having been made. A further email on 17 February 2024 said the insurance claim had been declined and referred to a quotation for replacement carpet, which is dated 6 February 2024. At the hearing, the landlord said the odour was only noticed after the property had been locked up for a few days following the end of the tenancy, and it was not noticeable at the final inspection. The landlord’s videos show that the carpet was badly stained in more than one room, with the worst staining in the room where the tenants replaced the carpet.
I am not persuaded that the landlord decided to replace the carpet without any factual basis. Looking at the videos, I find it more probable than not that the tenants carelessly allowed their pet dog to urinate around the house. This was a 4-bedroom property with a lounge and dining area. All but one of these carpeted areas had been affected by staining, with another room affected to a minor degree.
The insurance claim for carpet damage was declined on the basis of an exclusion clause in the policy. The tenants’ liability is therefore limited to 4 weeks’ rent, and the landlord said their claim was for the bond only ($3,060.00). I consider that the tenants should be given credit for their previous payment towards repairing the carpet, when applying this maximum limit on their liability. I award $3,060.00 less $943.00 which I was told was paid to address the same issue (an award of $2,117.00). Breach of quiet enjoyment / unlawful entry
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance (section 48 of the Act).
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises (section 38 of the Ac). Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds (CIV-2009-019-001524, DC Hamilton, 26 February 2010)).
The tenants said that the landlord (1) arrived without notice on 12 June 2023 and blocked the driveway while taking pictures of exterior damage to the property, when the tenant was very ill and trying to leave the premises to go to hospital; (2) made a decision to stop property viewings by purchasers; (3) tried to gain entry to the property to conduct a viewing when the landlord thought they were away in Christchurch; and (4) permitted strangers to attend the final inspection on 31 January 2024, changing the key code following the inspection despite the tenancy not expiring until 11.59pm that day.
As to the incident on 12 June 2023, the landlord said she took photographs of the exterior of the premises and left. She denied coming to the door several times to gain entry or that she blocked the driveway. The tenant provided a witness statement from a friend which supported the tenant’s account of what happened, but it is difficult to make a factual finding when the parties’ versions of events are so different. The landlord would have had permission to come onto the property initially as any visitor does, and it is unclear whether she then failed to leave within a reasonable time when asked to do so.
As to viewings by purchasers, the tenants said the landlord had misunderstood a request to reschedule a viewing as an instruction they did not want there to be any further viewings. They wanted viewings to continue so they could be released from the tenancy early. I note some inconsistency between the evidence given at the hearing and the written submissions, which complained about ongoing requests for viewings by the landlord. The landlord said the owner took the decision that it would be easier to show potential purchasers through the property after the tenants had left.
There are text messages about a viewing on Saturday 9 December 2023 and an email dated 13 December 2023 from the landlord declining to accept the tenant’s request to break the lease. The email also noted: “The listing agent told the landlord that you don’t want him to hold any open homes, and we fully respect your decision...We will start looking for buyers after you vacate the property”. The text messages record the sales agent asking if they could show the premises to a purchaser on Sunday 17 December 2023; the tenants replied that the property manager had said there would be no more viewings until the lease ended. Further texts from the sales agent were polite and enquired when the tenants were leaving.
There is evident confusion in the communications, with both parties stating the other had decided to stop viewings. It was the landlord’s prerogative to conduct viewings or to wait until expiry of the tenancy. The landlord had voluntarily reduced the weekly rent by $50.00 as compensation for the inconvenience but discontinued this when viewings stopped and notified the tenants of this in the 13 December 2023 email. Despite the apparent miscommunication, I find that there was no breach of the tenants’ quiet enjoyment.
The landlord said the tenants had given verbal permission for viewings while they were away in Christchurch. She found the tenants’ dogs in the property and so no viewings could take place. It sounds like the landlord and the tenants then had an argument over the phone. There were clearly personality conflicts between the landlord and the tenants, but I am not satisfied that this in itself amounts to a breach of quiet enjoyment (Smith v Floris (TT Auckland, 1404/93, 9 March 1994)).
If the landlord understood that permission for a viewing had been granted, and then found it could not proceed, she may have had some grounds for being displeased. I am unable to determine that the landlord did not have verbal permission.
The owner attended the final inspection on 31 January 2024, and it seems he arrived unannounced with two other men, ahead of the property manager who arrived afterwards. The tenants said they were intimidated by the presence of these strangers and asked them to leave, which they did after the tenant started to take photographs. (There may be some inconsistency in the written submissions, which also said the tenants asked the owner to leave through the property manager, but they did not). The landlord acknowledged that the tenants were not informed in advance that the owner would be in attendance because the timing of the inspection had been changed at the tenants’ request.
I find that the unannounced entry by the owner and third persons was technically a breach of section 48 of the Act (unlawful entry) and section 38 (quiet enjoyment). The fixed term was expiring on 31 January 2024, but until the tenancy expired, the tenants were entitled to exclusive possession of the premises and to compliance with the Act. Some form of notice ought to have been given, however informally, after the timing of the final inspection changed, to let the tenants know who was attending. It makes no difference legally that the tenants had already moved out prior to the end of their tenancy – the tenancy was extant. Moreover, the tenants were also deprived of the final half a day or so of their tenancy, which they possibly could have used for cleaning. They returned to the property the following day to complete this.
Although a breach of quiet enjoyment, it came right at the end of the tenancy and the evidence does not suggest the owner and his associates were threatening or aggressive in any way. Objectively the effect on the tenants ought to have been rather minor, in the nature of a rude interruption. I award compensation of $100.00. Filing fee
Both parties have had some success. It is appropriate that they bear their own costs.

Claims and awards in Tenancy Tribunal application 4813237 — net $2,017.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet replacement	$2,117.00		Carpet replacement
Breach of quiet enjoyment		$100.00	Breach of quiet enjoyment
Total award	$2,117.00	$100.00
Net award	$2,017.00
Total payable by Tenant to Landlord	$2,017.00

Order

The Bond Centre is to pay the bond of $3,060.00 (6435455-006) immediately apportioned as follows: Gramax Property Management Limited: $2,017.00 Ivanka Maria Pileff-Fasso and Ryan Garry Burgess: $1,043.00

Reasons

Both parties attended the hearing on 27 June 2024.
On 20 February 2024 the tenants applied for refund of the bond, exemplary damages for breach of quiet enjoyment, and exemplary damages for unlawful entry.
On 21 February 2024 the landlord applied for the cost of replacement carpet.
The tenancy ran from 1 February 2023 to 31 January 2024. Damage to the carpet
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, 41 and 49B of the Residential Tenancies Act 1986 (the Act)).
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 4 weeks' rent.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to 4 weeks' rent.
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.
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.
In the application form, the landlord claimed $6,172.05 for replacement carpet and underlay. The exit inspection report dated 1 February 2024 referred to yellow marks on the carpet with a strong smell in the lounge on the second floor. The tenants paid for this part of the carpet (about 2 square meters) to be replaced, together with another area of carpet on the stairway where the carpet had come away. They produced invoices for $943.00 and $368.00. They also had the carpet professionally cleaned. Subsequently the landlord complained that the urine odour was still there and provided videos at the hearing showing staining under the carpet in various rooms.
The tenants said they were asked to repair a small area of carpet, which they agreed to, only to discover that the landlord always intended to replace the carpets throughout the house. The tenants said that the patch repair was done, a quote for the carpet replacement obtained, and an insurance claim declined before the landlord raised any concerns about odour. Previous inspections had not raised any concerns.
I note that the landlord first raised a persistent issue with odour in an email on 13 February 2024. This also referred to an insurance claim having been made. A further email on 17 February 2024 said the insurance claim had been declined and referred to a quotation for replacement carpet, which is dated 6 February 2024. At the hearing, the landlord said the odour was only noticed after the property had been locked up for a few days following the end of the tenancy, and it was not noticeable at the final inspection. The landlord’s videos show that the carpet was badly stained in more than one room, with the worst staining in the room where the tenants replaced the carpet.
I am not persuaded that the landlord decided to replace the carpet without any factual basis. Looking at the videos, I find it more probable than not that the tenants carelessly allowed their pet dog to urinate around the house. This was a 4-bedroom property with a lounge and dining area. All but one of these carpeted areas had been affected by staining, with another room affected to a minor degree.
The insurance claim for carpet damage was declined on the basis of an exclusion clause in the policy. The tenants’ liability is therefore limited to 4 weeks’ rent, and the landlord said their claim was for the bond only ($3,060.00). I consider that the tenants should be given credit for their previous payment towards repairing the carpet, when applying this maximum limit on their liability. I award $3,060.00 less $943.00 which I was told was paid to address the same issue (an award of $2,117.00). Breach of quiet enjoyment / unlawful entry
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance (section 48 of the Act).
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises (section 38 of the Ac). Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds (CIV-2009-019-001524, DC Hamilton, 26 February 2010)).
The tenants said that the landlord (1) arrived without notice on 12 June 2023 and blocked the driveway while taking pictures of exterior damage to the property, when the tenant was very ill and trying to leave the premises to go to hospital; (2) made a decision to stop property viewings by purchasers; (3) tried to gain entry to the property to conduct a viewing when the landlord thought they were away in Christchurch; and (4) permitted strangers to attend the final inspection on 31 January 2024, changing the key code following the inspection despite the tenancy not expiring until 11.59pm that day.
As to the incident on 12 June 2023, the landlord said she took photographs of the exterior of the premises and left. She denied coming to the door several times to gain entry or that she blocked the driveway. The tenant provided a witness statement from a friend which supported the tenant’s account of what happened, but it is difficult to make a factual finding when the parties’ versions of events are so different. The landlord would have had permission to come onto the property initially as any visitor does, and it is unclear whether she then failed to leave within a reasonable time when asked to do so.
As to viewings by purchasers, the tenants said the landlord had misunderstood a request to reschedule a viewing as an instruction they did not want there to be any further viewings. They wanted viewings to continue so they could be released from the tenancy early. I note some inconsistency between the evidence given at the hearing and the written submissions, which complained about ongoing requests for viewings by the landlord. The landlord said the owner took the decision that it would be easier to show potential purchasers through the property after the tenants had left.
There are text messages about a viewing on Saturday 9 December 2023 and an email dated 13 December 2023 from the landlord declining to accept the tenant’s request to break the lease. The email also noted: “The listing agent told the landlord that you don’t want him to hold any open homes, and we fully respect your decision...We will start looking for buyers after you vacate the property”. The text messages record the sales agent asking if they could show the premises to a purchaser on Sunday 17 December 2023; the tenants replied that the property manager had said there would be no more viewings until the lease ended. Further texts from the sales agent were polite and enquired when the tenants were leaving.
There is evident confusion in the communications, with both parties stating the other had decided to stop viewings. It was the landlord’s prerogative to conduct viewings or to wait until expiry of the tenancy. The landlord had voluntarily reduced the weekly rent by $50.00 as compensation for the inconvenience but discontinued this when viewings stopped and notified the tenants of this in the 13 December 2023 email. Despite the apparent miscommunication, I find that there was no breach of the tenants’ quiet enjoyment.
The landlord said the tenants had given verbal permission for viewings while they were away in Christchurch. She found the tenants’ dogs in the property and so no viewings could take place. It sounds like the landlord and the tenants then had an argument over the phone. There were clearly personality conflicts between the landlord and the tenants, but I am not satisfied that this in itself amounts to a breach of quiet enjoyment (Smith v Floris (TT Auckland, 1404/93, 9 March 1994)).
If the landlord understood that permission for a viewing had been granted, and then found it could not proceed, she may have had some grounds for being displeased. I am unable to determine that the landlord did not have verbal permission.
The owner attended the final inspection on 31 January 2024, and it seems he arrived unannounced with two other men, ahead of the property manager who arrived afterwards. The tenants said they were intimidated by the presence of these strangers and asked them to leave, which they did after the tenant started to take photographs. (There may be some inconsistency in the written submissions, which also said the tenants asked the owner to leave through the property manager, but they did not). The landlord acknowledged that the tenants were not informed in advance that the owner would be in attendance because the timing of the inspection had been changed at the tenants’ request.
I find that the unannounced entry by the owner and third persons was technically a breach of section 48 of the Act (unlawful entry) and section 38 (quiet enjoyment). The fixed term was expiring on 31 January 2024, but until the tenancy expired, the tenants were entitled to exclusive possession of the premises and to compliance with the Act. Some form of notice ought to have been given, however informally, after the timing of the final inspection changed, to let the tenants know who was attending. It makes no difference legally that the tenants had already moved out prior to the end of their tenancy – the tenancy was extant. Moreover, the tenants were also deprived of the final half a day or so of their tenancy, which they possibly could have used for cleaning. They returned to the property the following day to complete this.
Although a breach of quiet enjoyment, it came right at the end of the tenancy and the evidence does not suggest the owner and his associates were threatening or aggressive in any way. Objectively the effect on the tenants ought to have been rather minor, in the nature of a rude interruption. I award compensation of $100.00. Filing fee
Both parties have had some success. It is appropriate that they bear their own costs.

Tenancy Tribunal case 4813237 — Property damage at 10 John Burn Road, Takanini, Takanini 2110

At a glance

Tenancy Tribunal case 4813237 — Property damage at 10 John Burn Road, Takanini, Takanini 2110

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions