What was the outcome of Tenancy Tribunal case 4842840?

The tribunal order states: Lesleyrose Saunders to pay Mark Hope $2,140.00 from the bond, calculated as

How much money was awarded in case 4842840?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4842840?

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

Where can I read the official tribunal order for case 4842840?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11330125-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4842840?

The tribunal order states: Lesleyrose Saunders to pay Mark Hope $2,140.00 from the bond, calculated as

How much money was awarded in case 4842840?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4842840?

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

Where can I read the official tribunal order for case 4842840?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11330125-Tribunal_Order.pdf.

1A Citrus Avenue, Waihi Beach, Waihi Beach 3611 Tenancy Tribunal Case 4842840 — Rent arrears

Order

Lesleyrose Saunders to pay Mark Hope $2,140.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,140.00 (5093769-006) to Mark Hope immediately.

Reasons

Both parties attended the hearing.
The tenant applied for compensation, exemplary damages, and refund of bond following the end of the tenancy.
The landlord counterclaimed for rent arrears, outgoings, compensation, and refund of the bond.
The claims were first heard in September 2024. There was insufficient time to hear all the evidence and the landlord’s claims for rent and power had to be re- calculated. Landlord’s claim

How much is owed for rent and power?

The tenancy ended by notice on 9 December 2023. The landlord claimed rent through to 14 December, which is when the tenant came back to do a final clean. The tenant had moved all her property out by 10 December, and the parties agreed that rent should be calculated to this date.
The landlord initially claimed rent of $1,548.00 but provided an amended summary for $1,059.29. The tenant says she made a further payment of $296.00 on 23 October 2019, in addition to the recorded payment of $260.00, and that she is still waiting on a bank statement from Westpac to confirm this.
Given the amount of time since the first hearing date, the tenant has had sufficient time to provide evidence of payments. It appears that she made extra payments in the weeks following the short payment of $260.00. Therefore, it is not clear that she would have made an extra payment of $296.00 on that date. I therefore find the amount claimed by the landlord proved.
The landlord initially claimed electricity costs of $119.43. However, the claim included a portion of the fixed charges, which were not payable by the tenant as they were not exclusively attributable to her occupation of the premises. The recalculation showed a credit of $1,300.52.

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

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy and remove all rubbish (s 40(1)(ca) Residential Tenancies Act 1986).
The landlord says the tenant did not leave the premises reasonably clean and tidy and left general rubbish in the recycling bin.
The parties met after the tenancy ended and discussed further cleaning requirements. The tenant returned to the premises on 12 and 14 December to do additional cleaning and believes she left the premises reasonably clean.
The landlord claims $150.00 for commercial carpet cleaning (hall and bedrooms), $70.00 for additional carpet cleaning, $245.00 for general cleaning, $56.66 for cleaning materials, and $40.00 for the rubbish. The landlord referred to numerous photos, which the tenant says were taken before she did additional cleaning.
There are two difficulties with the cleaning claim. First, the photos provided were from a video taken on 11 December, before the tenant did the additional cleaning. Therefore, they do not show the final condition of the property. Secondly the receipts for materials are dated 14 December 2023, 26 February 2024, and 19 March 2024; the latter two being well after the tenancy ended. The landlord was unable to provide dates when the cleaning work was done. For these reasons, the cleaning claim is not proved.
I have allowed the claim for the commercial carpet cleaning, which is reasonable given the length of the tenancy. I have also allowed $20.00 for transferring rubbish from the recycling bin.

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 (s 40(2)(a), 41 and 49B RTA).
Where the damage is careless, 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 (s 49B(3)(a) RTA). The excess in the case is $1,150.00.
Bathroom rail: The tenant says the rail came off early in the tenancy, most likely from her children pulling too hard on a towel. The landlord has not disproved fair wear and tear.
Dog damage: The landlord claims $368.00 for the cost of repairing dog damage to an exterior wall. The damage consists of plaster being rubbed off a corner, grubby marks on a wall, some plaster off the bottom of the wall, and some chew marks on an adjacent post.
The landlord increased rent by $21.00 per week (for 216 weeks) for the first dog, and another $7.00 per week (for 105 weeks) for the second dog. Although some of the increase may have been effectively subsumed within subsequent rent increases, the landlord has nevertheless received a significant amount of additional rent to cover additional wear and tear from the dogs. There is a potential issue whether the landlord could increase the rent for the dogs under s 28 RTA, given the Tribunal’s increased willingness to accept a tenant’s right to have pets under s 38. However, this is not an issue raised by the tenant.
The landlord says the ‘damage’ to the wall is damage rather than fair wear and tear. However, I find that the damage caused by the dogs rubbing or lying against the wall is fair wear and tear and is covered by the additional rent received. The chew marks are more likely damage, and I have made a proportionate award to recognise this.
Ceilings: The landlord provided photos of fly-spots on various ceilings through the house. He says he arranged for cleaners to try and remove the fly-spots, but they were unsuccessful. He says he had to paint the ceiling and claims $1,077.40. He says the ceiling was painted at the start of the tenancy as he had the same issue with the previous tenants.
The tenant says she tried to remove the fly-spots with a mop, but they would not come off. She referred to the cleaner’s statement where they said “Hey Mark, so we’ve just done half an hour and we’re only in a small part of the kitchen really not coming off fly poop sticks to mat finishes paint needs to be glossy we’re just not having fun here”.
Although the landlord says ceilings are invariably painted in mat paint, this is usually done for aesthetic reasons and to conceal imperfections in the ceiling. However, a downside is that ceilings are more difficult to clean and are prone to fly-spotting. The landlord has not excluded fair wear and tear and the claim is dismissed.
Wall repairs: There are various areas damage to walls and wooden trims. The most significant damage is where areas of wallpaper have been pulled away by small children. The landlord claims $105.00 plus the cost of materials for work he did, as well as $2,661.72 for work done by a contractor. However, the contractor’s account is not itemised.
The tenant says some of the damage noted was pre-existing; and some damage is noted in the pre-tenancy inspection report.
Some of the wallpaper was about 20 years old and well past the end of its expected lifespan, and some was about 10 years old and near the end of its useful life. The photos show edges of the wallpaper starting to lift and, unless it is glued down, there is a strong chance that small children with pull at it.
The amount of damage beyond fair wear and tear is relatively modest, and I would ordinarily award between $400.00 and $500.00 for this level of damage. As matters have turned out, there is a balance of $436.23 from the bond after all the other amounts have been deducted and, in all the circumstances, this is a sufficient amount.
Carpet replacement: There were three types of damage to the carpet: rust marks under furniture, cigarette burns, and a patch by the ranch slider where the pile was scratched or picked from the backing. I find that the tenant was not careless in relation to the rust stains, as there is no obvious reason why she would know this was happening. She is however liable for the other damage. Although she says she smoked outside, clearly someone was smoking inside, and she has not disproved liability for their actions. Given the nature and location of the damage, it would be difficult to remediate without full replacement. The claim is based on the insurance excess and the reduced amount covers any potential depreciation issues.
Shower repair: The landlord claims $1,150.00 for the cost of replacing the shower base. There is a mark on the base where the surface has been worn away. The landlord believes this was caused by a child’s seat on the base of the shower, and he provided a photo of a seat which he believes matches the shape of the mark. The tenant disputes this and says that the mark just developed over time. I am not satisfied the landlord has disproved fair wear and tear, and the claim is therefore dismissed. Exemplary damages: smoke alarms
The landlord says the tenant removed the smoke alarms. The alarms were replaced in August 2020, following a complaint by the tenant. She says the new ones started to beep after a couple of months and that the landlord brushed off her concerns.
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 (s 40(2)(ab) RTA. 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 (s 40(3A)(b) and Schedule 1A RTA). 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 (s 109(3) RTA).
The tenant intentionally removed the smoke alarms, and her ignorance of her legal obligations is no defence. The maximum penalty is high and a common starting point for a first incident is one-third of the maximum. However, while the penalty is payable to the landlord, the potential consequences of the breach would primarily fall on the tenant. If there was a fire, a smoke alarm would be unlikely save to the house, but it would potentially save the tenant’s family from loss of life. Although fire-related harm would undoubtedly impact the landlord, it would be to a much lesser extent than for the tenant. Therefore, I have only awarded a relatively modest sum of $500.00, to reinforce the need to leave smoke alarms in place. Tenant’s claim Failure to lodge the bond:
The landlord lodged the bond after about 5 months. He says he had a lot of other commitments at the time, and it slipped his mind.
A landlord must lodge a bond within 23 working days. Failure to do so is an unlawful act for which the Tribunal can award exemplary damages up to $1,500.00 (ss 19 and Schedule 1A RTA). Although it is an easy excuse for a landlord to make, that they forgot, the landlord did eventually lodge the bond without prompting. Therefore, I find the breach was not intentional and exemplary damages are not payable.
Insulation: The house has foil underfloor insulation. The tenant says the landlord agreed to replace the underfloor insulation within 90 days, and this was recorded in the tenancy agreement. The landlord says he later discovered that the foil insulation was compliant and did not need to be replaced. He altered the insulation statement in the tenancy agreement to record this on 3 August 2019. This was effectively a variation to the tenancy agreement. The tenant did not countersign the variation and says she does not recall any conversation about the adequacy of the existing insulation.
It is likely that the insulation complied with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 applicable at the time. Although installing and repairing foil insulation was prohibited, existing insulation could be retained provided it was in reasonable condition. Therefore, it is unlikely that the landlord committed an unlawful act. Nevertheless, it was a term of the contract that it would be replaced, and a landlord can agree to be bound by a greater obligation than the RTA requires. Therefore, there was a technical breach of the tenancy agreement. However, there is no evidence that this had any detrimental effect on the tenant and there is no obvious basis to award compensation. Failure to repair
A landlord is required to keep the premises in a reasonable state of repair (s 45(1)(b) RTA).
Leak: On 3 February 2023, the tenant notified the landlord that she had discovered some water damage in a bedroom wardrobe. On 11 February, the landlord inspected the source of the leak and advised the tenant the same day that he would have a roofer around the following Wednesday to repair the boot around the vent. Unfortunately, the roofer replaced the wrong boot and, the next time it rained, it leaked in the wardrobe again. Once the tenant notified the landlord, the correct boot was replaced promptly.
The duty to maintain is not strict liability and, as long as a landlord acts promptly, there may not be a basis to award compensation where the house needs repair. Here the landlord acted reasonably promptly following the initial notification. There was however a delay in resolving the problem due to a communication error between the landlord and his contractor. In some circumstances this might warrant a modest award of compensation to recognise the disruption to the tenant and the ‘loss of bargain’. However, as I have dealt with the landlord’s claim against the tenant in a light-handed way, it is reasonable to take a similar approach with the tenant’s claim against the landlord. Therefore, I have not awarded any compensation.
Stove: The tenant says the landlord delayed replacing the faulty stove. However, she has not provided any supporting evidence that the timeline for its replacement was unreasonable. Conclusion
Because neither party has been substantially successful with their claim, there is no basis to order name suppression, and their filing fees will not be refunded.
The end result is that I have awarded the bond in full to the landlord. Given the length of the tenancy, and relative merits of their claims, this is a reasonable outcome. J P Smith 5 February 2025

Tenancy Tribunal case 4842840 — Rent arrears at 1A Citrus Avenue, Waihi Beach, Waihi Beach 3611

Tenancy Tribunal case 4842840 — Rent arrears at 1A Citrus Avenue, Waihi Beach, Waihi Beach 3611

Order

Reasons

How much is owed for rent and power?

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

Is the tenant responsible for the damage to the premises?

Order

Reasons

How much is owed for rent and power?

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

Is the tenant responsible for the damage to the premises?