What was the outcome of Tenancy Tribunal case 4846803?

The tribunal order states: Jodea Jensen to pay Archer Mchattie Limited as agent for Keith & Cherie Archer

How much money was awarded in case 4846803?

Filing Fee: $20.44 awarded to landlord; Property Damage: $179.49 awarded to landlord; Property Damage: $34.05 awarded to landlord; Property Damage: $483.00 awarded to landlord; Rent Arrears: $271.43 awarded to landlord

What type of tenancy dispute was case 4846803?

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

Where can I read the official tribunal order for case 4846803?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10631743-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4846803?

The tribunal order states: Jodea Jensen to pay Archer Mchattie Limited as agent for Keith & Cherie Archer

How much money was awarded in case 4846803?

Filing Fee: $20.44 awarded to landlord; Property Damage: $179.49 awarded to landlord; Property Damage: $34.05 awarded to landlord; Property Damage: $483.00 awarded to landlord; Rent Arrears: $271.43 awarded to landlord

What type of tenancy dispute was case 4846803?

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

Where can I read the official tribunal order for case 4846803?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10631743-Tenancy_Tribunal_Order.pdf.

2 Kirton Street, Masterton, Masterton 5810 Tenancy Tribunal Case 4846803 — Property damage

Claims and awards in Tenancy Tribunal application 4846803 — net $988.41 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$271.43	Rent arrears
Electrical filling repair	$179.49	Electrical filling repair
Window repairs	$34.05	Window repairs
Cladding repairs	$483.00	Cladding repairs
Filing fee reimbursement	$20.44	must award the filing paid to commence the proceeding in the Tribunal, which is $20.44. NAME SUPPRESSION
Net award	$988.41
Total payable by Tenant to Landlord	$988.41

Claims and awards in Tenancy Tribunal application 4846803 — net $988.41 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$271.43	Rent arrears
Electrical filling repair	$179.49	Electrical filling repair
Window repairs	$34.05	Window repairs
Cladding repairs	$483.00	Cladding repairs
Filing fee reimbursement	$20.44	must award the filing paid to commence the proceeding in the Tribunal, which is $20.44. NAME SUPPRESSION
Net award	$988.41
Total payable by Tenant to Landlord	$988.41

Order

Jodea Jensen to pay Archer Mchattie Limited as agent for Keith & Cherie Archer $988.41 from the bond, calculated as shown in table below.
The Bond Centre is to release the Bond to the parties as follows: a. $988.41 to be released to the landlord. b. $531.59 to be released to the tenant.
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the tenant and landlord. There are a range of claims arising for matters prior to and following termination of the tenancy.
Both parties appeared at the hearing in Masterton today.

BACKGROUND

The parties entered into a tenancy agreement for a periodic tenancy commencing on 1 September 2022. The landlords are Keith and Cherie Archer by way of an agent (Archer McHattie Limited). The sole tenant is Jodea Jensen.
On 22 December 2023, the landlord issued the tenant a 63-day notice terminating the tenancy, that notice stating: Due to being in the midst of renovations at our own home we wish to gain vacant possession of the premises to move into the property ourselves. Therefore this letter serves as formal notice that you must vacate the property by 24 th Feb 2024. If you wish to vacate earlier than this date you must give four weeks notice.
On 4 January 2024 the tenant contacted the landlord stating: Have found a house and the landlord is willing to give me the house on the basis that I move in / pay first weeks rent 17 th January. I am not going to miss this opportunity for a home for my kids so am taking the offer up as you are already wanting me out anyways. So I will be out and kirton street house clean and tidy and empty by the 22 nd of January. Next week is my last week of rent to be paid to you. I hope you will give me a leeway of a full week to clean property and move things out. Any rent you decide to be still owed can come out of my bond. There is no damage to the property, and I will make sure it is back to original state once all my things are out of here, if you just give me that week to move.
The landlord replied that same day stating simply “sounds good to me”.
On 8 January, the landlord advised the tenant there were three further rent payments outstanding.
Then on 8 January 2024 the tenant contacted the landlord: I can’t afford to pay $500 rent at new place, and $380 at kirton for 3 weeks. I gave 2 weeks notice and would hand keys back on 22 nd , legally it has to be 4 which is those 3 weeks that would accumulate into arrears. I am just confused why it cant be taken out of the bond which is what that’s therefore. And you said you were moving in yourself anyways so collecting the 3 weeks rent arrears out of my bond would cover those 3 weeks so you wouldn’t be paying for anything.
That same day the tenant replied that she would be giving the keys back on “22 nd ”.
On 24 January the landlord messaged the tenant: Hi Jodea have you moved out yet we’ve not seen the keys back yet?
To which the tenant replied: Thought tenancy ended 1 st .
And then the landlord replied: You emailed me saying you were moving out on the 22nd
The tenant replied asking whether the landlords email saying she owed rent to the ‘1 st’ is incorrect. I do not have a reply from the landlord to that query.
On 25 January 2024 the tenant messaged the landlord to advise that the keys were at his office. Property relisted
The tenant has provided a screenshot of an advertisement for the property, where it was advertised for rent at $430.00 per week and available from 22 January 2024. At the hearing the landlord states that relisting occurred on 17 January , and was an error in that the listing was automatically system generated.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

TENANTS CLAIM

The tenant filed her claim with the Tribunal first. I will address the claims in turn: Compensation for costs and stress of moving, higher rent
The tenant seeks compensation and damages for what she submits was needing to move out of the tenancy early. The tenant’s position is that the landlord’s notice to terminate was a sham, so her termination was not lawfully made.
The tenant states that the landlord gave notice terminating the tenancy on the grounds of needing to move in, but the landlord did not move in. The tenant says the landlord advertised the property as available for rent from 22 January, but the keys were not returned until 25 January, this advertisement was later changed to being available from 8 April. The tenant does not consider that the landlord ever moved in, but at the hearing she confirmed she had no evidence to prove that.
The tenant considers that the reason the notice was given was because of a dispute the tenant had with a neighbour who is an associate of the landlord. The tenant says that she had an argument with the landlord over that neighbour dispute, and during that argument the landlord told her that she would be terminated, and shortly after that she received the termination notice.
Mr Archer states that he was in the middle of renovating his own house (and referred to photographs provided at the hearing), and he states that lived in the premises for three months after Ms Jensen moved out.
The landlord confirmed that the 17 January advertisement went up, and the property was advertised for rent, but that the new tenancy started on 10 May.
Mr Archer explained that the electronic system they use automatically lists the tenancy without any input from the landlord, once the landlord lists the tenancy end date into the system.
I raised with the landlord that it was not clear why the advertisement would say the rent was $430, if the rent for this tenancy was $380 per week? Mr Archer said that this had been entered into the system so he did not miss it with later rent increases. Mr Archer states that because he had entered this future rent rate, the system automatically picked up that rent amount when the system automatically listed the property for rent. Mr Archer states this was the Palace management system.
The landlord disputes knowing the neighbour and disputes that he gave notice because of that any dispute between the neighbour and the tenant. Analysis
This claim turns on the question of whether the landlord’s notice was lawful. It if was, then there would be no basis for me to consider any compensation to the tenant around her needing to move out of the tenancy.
A landlord is limited in the circumstances a tenancy can be terminated, but one of the lawful grounds is when the landlord requires the property as their principal place of residence for at least 90 days. In that case the landlord can give the tenant 63 days notice to end the tenancy.
In this case the tenant says that the landlord’s notice was a sham, because he did not move in, and there were ulterior motives in play. On the basis of the evidence I have available, I consider the tenant has not proven that the notice was not legitimate, for these reasons: a. The tenant says that the landlord did not move in, but has provided no supporting evidence of that. The landlord gave evidence that he did move in, and I have no reason to disbelieve him on that. b. The landlord provided photographs of his house he says was taken in January this year, which does support significant works being undertaken there, being the basis for needing somewhere else to live. c. I agree the evidence is that the premises were listed for rent early. That may on the face of it prove the landlord intended to rent the property straight after the tenant moved out, but there is no evidence that early rental actually occurred. I have no reason to disbelieve the landlord that the listing occurred automatically from the property management system the landlord uses.
For those reasons, I find the tenant has not proven that the termination was unlawful.
The tenant further submits that the landlord took possession of the premises early, hence she incurred costs moving out early and could not clean the property.
I am not persuaded that is the case. In my view what happened is as follows: a. The landlord gave the tenant notice ending the tenancy on 24 February 2024. b. The tenant found an alternate tenancy to commence on 17 January, and requested the landlord agree to an earlier termination date, and proposed 22 January. c. The landlord accepted that earlier date when he said “sounds good to me”. d. There was a miscommunication with a rent ledger being given with a later termination date, but the landlord believed the tenancy was to end on 22 January, as demonstrated by his text to the tenant on 24 January asking if the tenant had moved out yet as the keys were not returned. e. On 25 January the tenant gave the keys back to the landlord.
Overall, I consider the parties agreed to an earlier termination date of 22 January, and therefore possession needed to be returned by the landlord on that day.
The result is I find the tenant’s claim for compensation must be dismissed.

LANDLORDS CLAIMS

Carpet cleaning

The landlord states that he moved into the premises on 22 January, and the carpet was smelly. The carpet was only one year old at the start of the tenancy. The landlord states there were stains and unpleasant odours hence the carpet was commercially cleaned.
The tenant states the landlord went into the premises on 22 January, prior to the tenant believing that the tenancy was to end. The tenant agrees there were some marks on the carpet. The tenant said she thought she had three weeks to undertake the cleaning.
The tenant says that the landlord advised she would be trespassed from the property.
The landlord agrees that on 22 January he did say that the tenant would be trespassed from the property as he went in that day, and given the damage he said he found he would not want the tenant continuing to have access to the property, given he believed the tenancy was ending that same day - 22 January.
The landlord states the carpet cleaning would have been undertaken in early March. Analysis
The tenant does not need to return the premises immaculate, only reasonably clean and tidy. It can be very hard for a landlord to establish how premises smelt, and whether the odour required commercial cleaning, but not impossible. I am not persuaded that the landlord has proven that here.
I am also minded that the tenancy returned to the landlord in late January, but the carpet cleaning only occurred around mid March (the landlord said about a week before the invoice dated 19 March). If the carpet was in a bad way, I consider it likely carpet cleaning would have occurred earlier.
I accept there were some marks on the carpet, but when people live in a dwelling some marks to carpet will occur, that is a consequence of living in the premises, and would be akin to expected wear and tear of the property. The photographs do not show marks I consider would be excessive. That could be how the photographs were taken, but ultimately it is the landlord who must prove his claims.
Overall I find the landlord has not proven the carpet was not reasonably clean when returned. Electrical repairs
The landlord has claimed compensation to repair a power-point and light switch damaged when the premises were returned. The landlord refers to an invoice from Compass Electrical for $179.49.
The tenant accepts that these two electrical fittings were damaged during the tenancy, she is not sure how they were damaged. The tenant said she would have fixed these before leaving the tenancy if she could, and had made arrangements with an electrician. Analysis
Tenants are liable for damage beyond fair wear and tear, if that damage is careless or intentional. If the damage is not fair wear and tear, then the onus is on the tenant to prove it was not careless or intentional damage.
In this case the damage is not fair wear and tear. The tenant has not proven the damage was not careless or intentional damage, so I find she is liable for the repair cost. Window repairs
The landlord claims $34.05 to repair a broken glass louvre window.
The tenant says that the pane fell out and smashed. Again the tenant says she would have had that repaired if she had time.
I have set out the considerations for damage above. Analysis
In this case I am sure the broken glass was not broken from fair wear and tear. There is no evidence of defects with the frame which caused the glass to fall out. The tenant has not proven the damage was not careless or intentional, so she is liable for the repair cost. Cupboard door repairs and repainting
The landlord claims $150.00 for the repair of two handles on the kitchen cupboard. The relevant invoice for this repair recording: Remove & repair 2 cupboard doors from the kitchen that have had the handles smashed off. Impact damage.
The tenant said that she attempted to fix the handles, she put paint on but it was the wrong colour, and screwing the handles did not work. The tenant said that the handles were on a sliding door, and the screws were loose and too short. Analysis
This claim is marginal. But I consider based on the photographs, and the general age of the cupboard doors, that the landlord has not proven the damage is not from fair wear and tear (a maintenance issue). The explanation provided by the tenant is credible. That means this claim has not been established. Cladding repairs
The landlord states that the premises were in good condition. During the tenancy, the tenants piled car parts on the side of the house. The landlord considers that the damage was from those car parts, noting there was grease on some of the holes. The landlord states there were three holes in the wall, with two indentations.
The invoice provided from ACM Property Maintenance records the repair cost of $420.00 (excluding GST), which would mean the GST inclusive amount is $483.00.
The tenant disputes that there were car parts on the side of the house, but she does accept that two of the cracks on the side of the house occurred during the tenancy, but states it was from material thrown at the house from the neighbours. The tenant accepts that the large holes were caused by someone who turned up at the house and kicked them. Analysis
The damage is certainly not fair wear and tear. That means the onus moves to the tenant to prove the damage was not careless or intentional damage. On balance, the tenant has not disproven liability. The tenant says that the neighbours caused damage to the house when they threw items at the house, but there is no evidence of that such as police complaints, or communication with the landlord at the time to that effect. The damage is most likely careless or intentional damage, the tenant is liable for that. Rent arrears
The landlord claims rent arrears of $271.43 being arrears until 22 January 2024.
The tenant does not dispute this claim so it is ordered in full.

FILING FEE

Because the landlord has been substantially successful in his application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case tenant has applied for name suppression. Because the tenant has not been wholly or substantially successful in the proceeding, name suppression is declined.

Tenancy Tribunal case 4846803 — Property damage at 2 Kirton Street, Masterton, Masterton 5810

At a glance

Tenancy Tribunal case 4846803 — Property damage at 2 Kirton Street, Masterton, Masterton 5810

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIM

LANDLORDS CLAIMS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIM

LANDLORDS CLAIMS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions