What was the outcome of Tenancy Tribunal case 4825459?

The tribunal order states: BENJAMIN NIPPER, OLIVER WILLIAM MCLEAN, DYLAN ZACHARY

How much money was awarded in case 4825459?

Cleaning: $689.81 awarded to landlord; Cleaning: $1,000.00 awarded to landlord; Property Damage: $3,160.75 awarded to landlord; Property Damage: $195.15 awarded to landlord; Rent Refund: $925.71 awarded to tenant; Rubbish Removal: $200.00 awarded to landlord

What type of tenancy dispute was case 4825459?

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

Where can I read the official tribunal order for case 4825459?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10564003-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4825459?

The tribunal order states: BENJAMIN NIPPER, OLIVER WILLIAM MCLEAN, DYLAN ZACHARY

How much money was awarded in case 4825459?

Cleaning: $689.81 awarded to landlord; Cleaning: $1,000.00 awarded to landlord; Property Damage: $3,160.75 awarded to landlord; Property Damage: $195.15 awarded to landlord; Rent Refund: $925.71 awarded to tenant; Rubbish Removal: $200.00 awarded to landlord

What type of tenancy dispute was case 4825459?

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

Where can I read the official tribunal order for case 4825459?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10564003-Tenancy_Tribunal_Order.pdf.

49 Heriot Row, North Dunedin, Dunedin 9016 Tenancy Tribunal Case 4825459 — Property damage

Claims and awards in Tenancy Tribunal application 4825459 — net $4,320.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation for damages, missing chattels	$3,160.75		Compensation for damages, missing chattels
Carpet Cleaning	$689.81		Carpet Cleaning
Cleaning	$1,000.00		Cleaning
Rubbish removal	$200.00		Rubbish removal
Electrical fittings replacement/repair	$195.15		Electrical fittings replacement/repair
Rent refund		$925.71	Rent refund
Total award	$5,245.71	$925.71
Net award	$4,320.00
Total payable by Tenant to Landlord	$4,320.00

Order

BENJAMIN NIPPER, OLIVER WILLIAM MCLEAN, DYLAN ZACHARY CONNELL, ALBERT JOSEPH O'CONNELL, JORJA JOY ANNETTE FREWEN and SAMUEL EDWARD NIPPER are liable to pay Man-Oock Holdings (2007) Limited $4,320.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $4,320.00 (6249943-009) to Man-Oock Holdings (2007) Limited immediately.
The application for further compensation of $5,698.90 is dismissed.

Reasons

The landlord and one tenant 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 cross applied for their bond and a refund of overpaid rent.
The tenancy was for a fixed term from 1/1/2023 to 31/12/2024 at $1,080.00 rent per week.
There is no dispute that the tenant overpaid the rent by $925.71 and that the landlord still holds these funds.

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 claimed compensation of $4,974.59 for cleaning, cleaning products, rubbish removal, changing locks and missing chattels.
In support of the claim the landlord provided invoices, 18 photographs taken in December 2023, 39 photographs taken between 15 February and December 2023 and 764 photographs taken between 24/12/2023 and June 2014.
On the other hand, the tenant disputed the amount of cleaning needed and pointed out that there were no property inspections during the year and they were unaware the landlord was taking photographs when she was at the property.
In addition, the tenant provided written responses form the other tenants, who left after he did about the landlord’s claims.
I am persuaded, but only just, by the evidence that the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
The tenant did not return the keys and there were some chattels missing at the end of the tenancy.
The landlord had to replace light bulbs and smoke alarm batteries.
However, the amount claimed has been significantly reduced to reflect the lack of supporting evidence about the state of the premises at the beginning of the tenancy and the amount of time needed to rectify issues.
Further some of the costs claimed relate to returning chattels to the rooms these were in at the start of the tenancy.
The landlord relied on the clause in the tenancy agreement to that effect.
I consider this clause is not enforceable, especially taking into account the evidence of the tenant that they were not provided with a copy of the chattels list. This led to difficulties when the landlord removed a refrigerator and microwave being stored at the property, which the tenant thought was part of the chattels.

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 $5,970.02 for what she believed was intentional damage, in particular leaving furniture intended for use inside the premises, outside for most of the tenancy.
In response the tenant disputed most of the damage, except the electrical fitting in the hallway.
Rather the tenant believed the damage was fair wear and tear.
However, the tenant did agree some furniture had been left outside despite being asked not to by the landlord.
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.
The landlord does not hold insurance for the premises.
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.
I am satisfied that damage was caused to chattels during the tenancy, especially the furniture left outside and the electrical light fitting in the hallway.
However, I consider much of the other damage claimed by the landlord, such as to the footrest on the lazyboy chair is fair wear and tear, taking into account the type of damage, and age and condition of the chattels as evidenced by the photographs.
An award has been made for what I consider is reasonable compensation in the circumstances.

Has the tenant removed or interfered with the smoke alarms?

The landlord submitted that the tenant had removed three smoke alarms, probably around July or August and two of these were missing at the end of the tenancy.
In response the tenant agreed smoke alarms were taken down in December because the alarms kept triggering for no reason.
However, the tenant agreed the alarms were not replaced.
A tenant must not cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004. See section 40(2)(ab) Residential Tenancies Act 1986. The definition of “means of escape” includes “all active and passive protection features required to warn people of fire...”, which covers smoke alarms.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 40(3A)(b) and Schedule 1A Residential Tenancies Act 1986.
I find the tenant committed an unlawful act by removing the smoke alarms and not replacing them.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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. See section 109(3) Residential Tenancies Act 1986.
Although the tenant intentionally removed the alarms, I do not consider this is a situation where it would be just to award exemplary damages.
This is because, although, the landlord was aware from the middle of the tenancy that at least one alarm had been taken down she took no steps pursuant to section 49 to mitigate the loss of either party for the breach.
Rather the landlord waited until after the end of the tenancy to seek redress via her application.
While the tenant agreed two alarms had been taken down their evidence was this happened late in the tenancy when the alarms malfunctioned, and the tenant was leaving.
The Tenancy Tribunal is a civil jurisdiction, the onus of proving claims rests with the party making that claim, in this case the landlord.
The standard of proof is on the balance of probabilities.
Section 85 of the Residential Tenancies Act 1986 provides useful guidance about how the Tribunal should exercise its jurisdiction. This must be in a manner most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises.
Moreover, the Tribunal must consider the substantial merits and justice of the case without being bound to give effect to strict legal rights or obligations, or to legal forms and technicalities.
In the interests of a fair and expeditious resolution of the dispute between the parties I have not awarded the landlord all the compensation she has claimed, nor the refund of overpaid rent to the tenant.
I consider an award of the bond and the amount of overpaid rent to the landlord is reasonable compensation for the cleaning, damages and repairs.
The landlord has an obligation to mitigate loss, which she only did in relation to the furniture taken outside.
Moreover, the tenant was not aware that during visits the landlord was taking photographs of matters which concerned her, and which would later be used in evidence against them.
If the landlord chooses not to do formal routine inspections during the tenancy that is a matter for her.
However, the landlord does have an obligation to mitigate the loss of both parties if she believes there has been a breach of the legislation.
At the very least the landlord needed to issue 14 day notices to the tenant if she had concerns about cleanliness and damage, to allow the tenant the opportunity to remedy the situation.
Not to do so effectively ‘blindsided’ the tenant to their obligations and led to the breakdown of the landlord/tenant relationship between the parties.
No filing fee is awarded to either party.
Suppression is not granted to the landlord pursuant to section 95A because she was only partly successful with her application.

Claims and awards in Tenancy Tribunal application 4825459 — net $4,320.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation for damages, missing chattels	$3,160.75		Compensation for damages, missing chattels
Carpet Cleaning	$689.81		Carpet Cleaning
Cleaning	$1,000.00		Cleaning
Rubbish removal	$200.00		Rubbish removal
Electrical fittings replacement/repair	$195.15		Electrical fittings replacement/repair
Rent refund		$925.71	Rent refund
Total award	$5,245.71	$925.71
Net award	$4,320.00
Total payable by Tenant to Landlord	$4,320.00

Order

BENJAMIN NIPPER, OLIVER WILLIAM MCLEAN, DYLAN ZACHARY CONNELL, ALBERT JOSEPH O'CONNELL, JORJA JOY ANNETTE FREWEN and SAMUEL EDWARD NIPPER are liable to pay Man-Oock Holdings (2007) Limited $4,320.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $4,320.00 (6249943-009) to Man-Oock Holdings (2007) Limited immediately.
The application for further compensation of $5,698.90 is dismissed.

Reasons

The landlord and one tenant 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 cross applied for their bond and a refund of overpaid rent.
The tenancy was for a fixed term from 1/1/2023 to 31/12/2024 at $1,080.00 rent per week.
There is no dispute that the tenant overpaid the rent by $925.71 and that the landlord still holds these funds.

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 claimed compensation of $4,974.59 for cleaning, cleaning products, rubbish removal, changing locks and missing chattels.
In support of the claim the landlord provided invoices, 18 photographs taken in December 2023, 39 photographs taken between 15 February and December 2023 and 764 photographs taken between 24/12/2023 and June 2014.
On the other hand, the tenant disputed the amount of cleaning needed and pointed out that there were no property inspections during the year and they were unaware the landlord was taking photographs when she was at the property.
In addition, the tenant provided written responses form the other tenants, who left after he did about the landlord’s claims.
I am persuaded, but only just, by the evidence that the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
The tenant did not return the keys and there were some chattels missing at the end of the tenancy.
The landlord had to replace light bulbs and smoke alarm batteries.
However, the amount claimed has been significantly reduced to reflect the lack of supporting evidence about the state of the premises at the beginning of the tenancy and the amount of time needed to rectify issues.
Further some of the costs claimed relate to returning chattels to the rooms these were in at the start of the tenancy.
The landlord relied on the clause in the tenancy agreement to that effect.
I consider this clause is not enforceable, especially taking into account the evidence of the tenant that they were not provided with a copy of the chattels list. This led to difficulties when the landlord removed a refrigerator and microwave being stored at the property, which the tenant thought was part of the chattels.

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 $5,970.02 for what she believed was intentional damage, in particular leaving furniture intended for use inside the premises, outside for most of the tenancy.
In response the tenant disputed most of the damage, except the electrical fitting in the hallway.
Rather the tenant believed the damage was fair wear and tear.
However, the tenant did agree some furniture had been left outside despite being asked not to by the landlord.
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.
The landlord does not hold insurance for the premises.
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.
I am satisfied that damage was caused to chattels during the tenancy, especially the furniture left outside and the electrical light fitting in the hallway.
However, I consider much of the other damage claimed by the landlord, such as to the footrest on the lazyboy chair is fair wear and tear, taking into account the type of damage, and age and condition of the chattels as evidenced by the photographs.
An award has been made for what I consider is reasonable compensation in the circumstances.

Has the tenant removed or interfered with the smoke alarms?

The landlord submitted that the tenant had removed three smoke alarms, probably around July or August and two of these were missing at the end of the tenancy.
In response the tenant agreed smoke alarms were taken down in December because the alarms kept triggering for no reason.
However, the tenant agreed the alarms were not replaced.
A tenant must not cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004. See section 40(2)(ab) Residential Tenancies Act 1986. The definition of “means of escape” includes “all active and passive protection features required to warn people of fire...”, which covers smoke alarms.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 40(3A)(b) and Schedule 1A Residential Tenancies Act 1986.
I find the tenant committed an unlawful act by removing the smoke alarms and not replacing them.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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. See section 109(3) Residential Tenancies Act 1986.
Although the tenant intentionally removed the alarms, I do not consider this is a situation where it would be just to award exemplary damages.
This is because, although, the landlord was aware from the middle of the tenancy that at least one alarm had been taken down she took no steps pursuant to section 49 to mitigate the loss of either party for the breach.
Rather the landlord waited until after the end of the tenancy to seek redress via her application.
While the tenant agreed two alarms had been taken down their evidence was this happened late in the tenancy when the alarms malfunctioned, and the tenant was leaving.
The Tenancy Tribunal is a civil jurisdiction, the onus of proving claims rests with the party making that claim, in this case the landlord.
The standard of proof is on the balance of probabilities.
Section 85 of the Residential Tenancies Act 1986 provides useful guidance about how the Tribunal should exercise its jurisdiction. This must be in a manner most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises.
Moreover, the Tribunal must consider the substantial merits and justice of the case without being bound to give effect to strict legal rights or obligations, or to legal forms and technicalities.
In the interests of a fair and expeditious resolution of the dispute between the parties I have not awarded the landlord all the compensation she has claimed, nor the refund of overpaid rent to the tenant.
I consider an award of the bond and the amount of overpaid rent to the landlord is reasonable compensation for the cleaning, damages and repairs.
The landlord has an obligation to mitigate loss, which she only did in relation to the furniture taken outside.
Moreover, the tenant was not aware that during visits the landlord was taking photographs of matters which concerned her, and which would later be used in evidence against them.
If the landlord chooses not to do formal routine inspections during the tenancy that is a matter for her.
However, the landlord does have an obligation to mitigate the loss of both parties if she believes there has been a breach of the legislation.
At the very least the landlord needed to issue 14 day notices to the tenant if she had concerns about cleanliness and damage, to allow the tenant the opportunity to remedy the situation.
Not to do so effectively ‘blindsided’ the tenant to their obligations and led to the breakdown of the landlord/tenant relationship between the parties.
No filing fee is awarded to either party.
Suppression is not granted to the landlord pursuant to section 95A because she was only partly successful with her application.

Tenancy Tribunal case 4825459 — Property damage at 49 Heriot Row, North Dunedin, Dunedin 9016

At a glance

Tenancy Tribunal case 4825459 — Property damage at 49 Heriot Row, North Dunedin, Dunedin 9016

At a glance

Award balance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Has the tenant removed or interfered with the smoke alarms?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Has the tenant removed or interfered with the smoke alarms?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions