What was the outcome of Tenancy Tribunal case 4840461?

The tribunal order states: Stewart Anthony Tahere and Pakete Simpson must pay James Law Realty

How much money was awarded in case 4840461?

Property Damage: $230.00 awarded to landlord; Property Damage: $287.00 awarded to landlord; Water Rates: $878.58 awarded to landlord; Which Has Already Been Refunded: $1,371.43 awarded to landlord

What type of tenancy dispute was case 4840461?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4840461?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10934466-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4840461?

The tribunal order states: Stewart Anthony Tahere and Pakete Simpson must pay James Law Realty

How much money was awarded in case 4840461?

Property Damage: $230.00 awarded to landlord; Property Damage: $287.00 awarded to landlord; Water Rates: $878.58 awarded to landlord; Which Has Already Been Refunded: $1,371.43 awarded to landlord

What type of tenancy dispute was case 4840461?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4840461?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10934466-Tenancy_Tribunal_Order.pdf.

4 Youth Street, Mount Roskill, Auckland 1041 Tenancy Tribunal Case 4840461 — Property damage

Claims and awards in Tenancy Tribunal application 4840461 — net $2,767.01 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
which has already been refunded	$1,371.43	which has already been refunded
Water rates	$878.58	Water rates
Replace damaged garden pavers	$230.00	Replace damaged garden pavers
Exterior and interior door damage repair	$287.00	Exterior and interior door damage repair
Net award	$2,767.01
Total payable by Tenant to Landlord	$2,767.01

Order

Stewart Anthony Tahere and Pakete Simpson must pay James Law Realty Limited As Agent For Xueying Zhang And Fei Ji $2,767.01 immediately, calculated as shown in table below.
The landlord’s claims for wall scratches and hose repair, kitchen drawer and cupboard repairs are dismissed.

Reasons

The hearing was held by teleconference on 14 August 2024. The agent for the landlord and the owner attended the hearing. Mr Tahere attended for the tenants.
The landlord has applied for rent arrears, outstanding water rates, compensation for damages and reimbursement of the filing fee following the end of the tenancy.
The hearing was briefly adjourned for the landlord to provide a breakdown of the compensation claimed for damages.

How much is owed for rent and water rates?

The tenancy ended on 7 November 2023. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.

Are the tenants 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 Residential Tenancies Act 1986 (“RTA”).
Carelessness is not defined in the RTA but it has its normal meaning of lack of care, negligence or lack of forethought. The standard of care required is similar to the standard of care required by the general law of tort in negligence cases. Thus, the question can be expressed as whether the tenant, or some other person at the premises with the tenant’s permission, was “exercising that degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances:” Mercier v Smith & Greenan 14/12/98, Dunedin TT 228/93.
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.
“Fair wear and tear” is deterioration caused by the reasonable use of the premises and the ordinary operation of the forces of nature. Importantly, intentional or negligent damage are not fair wear and tear.
A tenant is also not liable for fair wear and tear as things wore out in the course of reasonable use: “Mere use of the premises will by the law of inevitability produce a deterioration in condition. ... [W]here a landlord proves the existence of damage, the landlord should also assume a burden of proof to exclude fair wear and tear. If a tenant raises a plausible explanation that points to fair wear and tear as an explanation, the landlord will fail in the claim.” (Nixon v Gear-Otter DC North Shore, TT 216/94, 30 January 1996, pages 26, 27)
The landlord must provide sufficient evidence to discharge their burden of proof for each claim.
In this case, the tenancy started on 4 September 2022 and ended on 7 November 2023. The landlord did not provide a property inspection report from the start of the tenancy or the end of the tenancy. Instead, the landlord relied on a routine inspection report of an inspection carried out on 9 June 2022, which was before the tenancy started, and a routine inspection report carried out on 31 January 2023. The landlord also relied on a quote of $1,725.00 from BrickSERV/One-Stop Team and 7 photographs from the end of the tenancy of the claimed damages. The hearing was briefly adjourned for the landlord to provide a breakdown of the compensation claimed. The owner presented an invoice from Seventeeth Construction setting out the claims, which are addressed below.
Wall Scratches and Hose Repair Claim ($690 incl GST): The landlord claims this amount for minor wall repairs, including patching scratches and repairing hose connections. They provided photographs showing incomplete repair attempts and an invoice. However, a routine inspection report from June 9, 2022, indicated no issues with the walls, however this was before the tenancy commenced. The routine inspection report carried out on 31 January 2023, which was during the tenancy, shows scuff marks on the walls in bedroom 2, 3 and 4. But no photos or reports were provided from the start of the tenancy, nor was there any evidence regarding the hose damage. The tenant denied responsibility, stating that he had not attempted repairs and recalled that the walls were in a similar state at the beginning of the tenancy, possibly due to unfinished painting work.
I find the landlord has not provided sufficient evidence to prove, on the balance of probabilities, that the tenant caused the damage during the tenancy.
Under section 40(2), the tenant is liable for intentional or careless damage. However, the landlord bears the burden of proving that the damage occurred during the tenancy. Without a property condition report from the start or clear evidence linking the damage to the tenants, the claim fails and is therefore dismissed.
Damaged Garden Pavers Claim ($230.00 incl GST): The tenant accepted responsibility for this claim, acknowledging that he accidentally damaged the pavers by parking his car on the grass and driving over them. The tenant is liable for $230.00 to replace the damaged pavers.
Kitchen Drawer and Cupboard Repair Claim ($230.00 incl GST): The landlord seeks compensation for repairs to a kitchen drawer and cupboard. The drawer face and handle came off, and the cupboard door had to be rehung. The tenant did not witness the cause of the damage but thought it could have been caused by his children forcefully opening them. But he could not be sure as he considered the materials were of poor quality and that the damage could be due to normal wear and tear.
Although the tenant accepted that his children may have caused the damage, he raised a valid point about the potential for normal wear and tear, which tenants are not responsible for under section 40(2)(a).
I am not persuaded that the landlord has established to the standard required that the tenants are liable for the damage claimed. There is insufficient evidence to establish that the repairs were not simply required because of fair wear and tear and/or a general maintenance issue. This claim is therefore dismissed.
Exterior and Interior Door Damage Repair ($575.00 incl GST): The landlord claimed damage to the door frame, door handle, and gate. The tenant admitted to damaging the door frame while forcing it open due to not having a key but argued that the door handle was faulty from the start and had been reported to the property manager without any action taken. The tenant also stated that the gate may have been damaged by his children or due to its age.
The tenant admitted responsibility for damaging the door frame, which constitutes careless damage under section 40(2)(a). However, the tenant’s report of the faulty door handle not being fixed and the uncertainty about the gate’s condition suggest that these items may be related to maintenance issues or normal wear and tear, which are the landlord’s responsibility. I find this claim is partially upheld and allow $287.50 towards the repair of the door frame. Filing fee
As the landlord has not been wholly or substantially successful with its application, I decline to order the tenant to reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4840461 — net $2,767.01 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
which has already been refunded	$1,371.43	which has already been refunded
Water rates	$878.58	Water rates
Replace damaged garden pavers	$230.00	Replace damaged garden pavers
Exterior and interior door damage repair	$287.00	Exterior and interior door damage repair
Net award	$2,767.01
Total payable by Tenant to Landlord	$2,767.01

Order

Stewart Anthony Tahere and Pakete Simpson must pay James Law Realty Limited As Agent For Xueying Zhang And Fei Ji $2,767.01 immediately, calculated as shown in table below.
The landlord’s claims for wall scratches and hose repair, kitchen drawer and cupboard repairs are dismissed.

Reasons

The hearing was held by teleconference on 14 August 2024. The agent for the landlord and the owner attended the hearing. Mr Tahere attended for the tenants.
The landlord has applied for rent arrears, outstanding water rates, compensation for damages and reimbursement of the filing fee following the end of the tenancy.
The hearing was briefly adjourned for the landlord to provide a breakdown of the compensation claimed for damages.

How much is owed for rent and water rates?

The tenancy ended on 7 November 2023. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.

Are the tenants 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 Residential Tenancies Act 1986 (“RTA”).
Carelessness is not defined in the RTA but it has its normal meaning of lack of care, negligence or lack of forethought. The standard of care required is similar to the standard of care required by the general law of tort in negligence cases. Thus, the question can be expressed as whether the tenant, or some other person at the premises with the tenant’s permission, was “exercising that degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances:” Mercier v Smith & Greenan 14/12/98, Dunedin TT 228/93.
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.
“Fair wear and tear” is deterioration caused by the reasonable use of the premises and the ordinary operation of the forces of nature. Importantly, intentional or negligent damage are not fair wear and tear.
A tenant is also not liable for fair wear and tear as things wore out in the course of reasonable use: “Mere use of the premises will by the law of inevitability produce a deterioration in condition. ... [W]here a landlord proves the existence of damage, the landlord should also assume a burden of proof to exclude fair wear and tear. If a tenant raises a plausible explanation that points to fair wear and tear as an explanation, the landlord will fail in the claim.” (Nixon v Gear-Otter DC North Shore, TT 216/94, 30 January 1996, pages 26, 27)
The landlord must provide sufficient evidence to discharge their burden of proof for each claim.
In this case, the tenancy started on 4 September 2022 and ended on 7 November 2023. The landlord did not provide a property inspection report from the start of the tenancy or the end of the tenancy. Instead, the landlord relied on a routine inspection report of an inspection carried out on 9 June 2022, which was before the tenancy started, and a routine inspection report carried out on 31 January 2023. The landlord also relied on a quote of $1,725.00 from BrickSERV/One-Stop Team and 7 photographs from the end of the tenancy of the claimed damages. The hearing was briefly adjourned for the landlord to provide a breakdown of the compensation claimed. The owner presented an invoice from Seventeeth Construction setting out the claims, which are addressed below.
Wall Scratches and Hose Repair Claim ($690 incl GST): The landlord claims this amount for minor wall repairs, including patching scratches and repairing hose connections. They provided photographs showing incomplete repair attempts and an invoice. However, a routine inspection report from June 9, 2022, indicated no issues with the walls, however this was before the tenancy commenced. The routine inspection report carried out on 31 January 2023, which was during the tenancy, shows scuff marks on the walls in bedroom 2, 3 and 4. But no photos or reports were provided from the start of the tenancy, nor was there any evidence regarding the hose damage. The tenant denied responsibility, stating that he had not attempted repairs and recalled that the walls were in a similar state at the beginning of the tenancy, possibly due to unfinished painting work.
I find the landlord has not provided sufficient evidence to prove, on the balance of probabilities, that the tenant caused the damage during the tenancy.
Under section 40(2), the tenant is liable for intentional or careless damage. However, the landlord bears the burden of proving that the damage occurred during the tenancy. Without a property condition report from the start or clear evidence linking the damage to the tenants, the claim fails and is therefore dismissed.
Damaged Garden Pavers Claim ($230.00 incl GST): The tenant accepted responsibility for this claim, acknowledging that he accidentally damaged the pavers by parking his car on the grass and driving over them. The tenant is liable for $230.00 to replace the damaged pavers.
Kitchen Drawer and Cupboard Repair Claim ($230.00 incl GST): The landlord seeks compensation for repairs to a kitchen drawer and cupboard. The drawer face and handle came off, and the cupboard door had to be rehung. The tenant did not witness the cause of the damage but thought it could have been caused by his children forcefully opening them. But he could not be sure as he considered the materials were of poor quality and that the damage could be due to normal wear and tear.
Although the tenant accepted that his children may have caused the damage, he raised a valid point about the potential for normal wear and tear, which tenants are not responsible for under section 40(2)(a).
I am not persuaded that the landlord has established to the standard required that the tenants are liable for the damage claimed. There is insufficient evidence to establish that the repairs were not simply required because of fair wear and tear and/or a general maintenance issue. This claim is therefore dismissed.
Exterior and Interior Door Damage Repair ($575.00 incl GST): The landlord claimed damage to the door frame, door handle, and gate. The tenant admitted to damaging the door frame while forcing it open due to not having a key but argued that the door handle was faulty from the start and had been reported to the property manager without any action taken. The tenant also stated that the gate may have been damaged by his children or due to its age.
The tenant admitted responsibility for damaging the door frame, which constitutes careless damage under section 40(2)(a). However, the tenant’s report of the faulty door handle not being fixed and the uncertainty about the gate’s condition suggest that these items may be related to maintenance issues or normal wear and tear, which are the landlord’s responsibility. I find this claim is partially upheld and allow $287.50 towards the repair of the door frame. Filing fee
As the landlord has not been wholly or substantially successful with its application, I decline to order the tenant to reimburse the filing fee.

Tenancy Tribunal case 4840461 — Property damage at 4 Youth Street, Mount Roskill, Auckland 1041

At a glance

Tenancy Tribunal case 4840461 — Property damage at 4 Youth Street, Mount Roskill, Auckland 1041

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent and water rates?

Are the tenants responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent and water rates?

Are the tenants responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions