What was the outcome of Tenancy Tribunal case 4851142?

The tribunal order states: Michelle Bendall must pay Adam Te Aroha Metuarau Roi $3,260.00 immediately,

How much money was awarded in case 4851142?

Compensation: Coordination of plumbe…: $100.00 awarded to tenant; Compensation: Fire Remediation: $1,000.00 awarded to tenant; Pest Control: $250.00 awarded to tenant; Compensation: Staining to weatherboa…: $500.00 awarded to tenant; Compensation: Water Charges: $140.00 awarded to tenant; Rent Arrears: $5,250.00 awarded to landlord

What type of tenancy dispute was case 4851142?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4851142?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10491915-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4851142?

The tribunal order states: Michelle Bendall must pay Adam Te Aroha Metuarau Roi $3,260.00 immediately,

How much money was awarded in case 4851142?

Compensation: Coordination of plumbe…: $100.00 awarded to tenant; Compensation: Fire Remediation: $1,000.00 awarded to tenant; Pest Control: $250.00 awarded to tenant; Compensation: Staining to weatherboa…: $500.00 awarded to tenant; Compensation: Water Charges: $140.00 awarded to tenant; Rent Arrears: $5,250.00 awarded to landlord

What type of tenancy dispute was case 4851142?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4851142?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10491915-Tribunal_Order.pdf.

Unit/Flat 4, 121 Shelly Beach Road, St Marys Bay, Tenancy Tribunal Case 4851142 — Rent arrears

Claims and awards in Tenancy Tribunal application 4851142 — net $3,260.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$5,250.00		Rent arrears
Compensation: Staining to weatherboards		$500.00	Staining to weatherboards
Compensation: Fire remediation		$1,000.00	Fire remediation
Compensation: Pest control		$250.00	Pest control
Compensation: Water charges		$140.00	Water charges
Compensation: Coordination of plumber		$100.00	Coordination of plumber
Total award	$5,250.00	$1,990.00
Net award	$3,260.00
Total payable by Tenant to Landlord	$3,260.00

Claims and awards in Tenancy Tribunal application 4851142 — net $3,260.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$5,250.00		Rent arrears
Compensation: Staining to weatherboards		$500.00	Staining to weatherboards
Compensation: Fire remediation		$1,000.00	Fire remediation
Compensation: Pest control		$250.00	Pest control
Compensation: Water charges		$140.00	Water charges
Compensation: Coordination of plumber		$100.00	Coordination of plumber
Total award	$5,250.00	$1,990.00
Net award	$3,260.00
Total payable by Tenant to Landlord	$3,260.00

Order

Michelle Bendall must pay Adam Te Aroha Metuarau Roi $3,260.00 immediately, calculated as shown in the table below:
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the landlord and tenant. The landlord seeks orders for rent arrears, the tenant seeks orders for compensation.

BACKGROUND

The parties entered into a tenancy agreement on 18 April 2021. The weekly rental for the premises was $1,050.00. The landlord is Adam Roi and the tenant Michelle Bendall.
During the tenancy, things have not gone well, and I will address the particular issues below.
I note that an earlier hearing was convened before Adjudicator Kee. Mr Kee records that the landlord was unwell at that hearing, so it could not be concluded. However there were efforts made toward the party settling the dispute, and Mr Kee convened a further telephone hearing for that, but a settlement was not possible. So the matter has been scheduled to another in-person hearing before myself today on 24 June 2024. Both parties attended that hearing.
I note that the landlord has given notice to the tenant ending the tenancy because the landlord is moving back into the premises. I understand from what the tenant advised today, the tenancy ends on 4 July 2024. The tenant has asked for an extension of the possession date. The landlord will consider that request and confirm with the tenant today whether an extension will be approved, but as discussed, that is not a matter I can adjudicate today, and it is not part of the tenant’s claim therefore I will not express any views on this request.

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.

LANDLORDS CLAIM

The landlord has applied for an order that the tenant pay rent arrears.
The landlord states there is a history of the tenant making sporadic in rent payments, and what remains is rent arrears to the sum of $5,250.00.
The tenant agrees that rent ledger is correct, but she disputes that she should be liable for the full rental. The tenant accepts that the agreed rental was $1,050.00 (as per the tenancy agreement), but states that during the tenancy the landlord had agreed to reduce the rent to $750.00 per week because the rent was not at a rate consistent with neighbouring properties.
The landlord states that the discussion around the $750.00 rent came about a year after the tenancy started, and came about because the tenant was not happy with the appearance of the premises. Because of the landlord’s inability to stain the outside of the house the landlord agreed to reduce the rent. The landlord states that there was a discussion around the rental, and he was agreeable to discussing this, but a figure was not reached on this, and there was no agreement for a rent reduction. Analysis
The tenant has not suggested the landlord’s rent records are incorrect, other than the dispute around the level of rent that was due, because of the state of the premises, or to put that another way the tenant disputes the weekly rental level.
As I advised at the hearing, because the tenant has applied for compensation, I will deal with any compensation-related issues in the tenant’s claims below.
What remains is that the tenant agreed to rent the premises for a weekly rental of $1,050.00, so was contractually obligated to pay the rent at that level. The RTA requires that rental agreements be in writing and have the level of rent recorded in that agreement. I have seen no written document which records the landlord agreeing to a lesser rental level so as to conclude that the parties agreed on a lower rent for the premises.
The RTA further requires at section 40(1)(a) that the “Tenant shall...pay the rent as and when it is due and payable under the tenancy agreement”. The tenancy agreement requires that rent be paid at $1,050.00 per week.
The landlord’s claim is accepted in full, and the tenant is ordered to pay rent arrears of $5,250.00.

TENANTS CLAIMS

Compensation for the premises not being stained

The tenant says that the outside of the premises needed staining, and states that it was agreed that the rent would be $1,050.00 per week on the basis of the housing having been stained. The tenant states that in February 2023 the tenant raised concerns that the staining had not been completed, and the landlord agreed then that he would speak with his partner about getting this work done. On that basis the tenant says it was agreed the rent would drop to $750.00 per week. The tenant states that the neighbour’s property was larger and completely renovated inside and rented $850.00, and that was how they had agreed on the rental rate of $750.00.
The landlord accepts there is some responsibility on their part and that the staining should have been done sooner, but he considers that it would be wrong to take only the neighbour’s property into account when considering the rental level, rather there should be consideration of a range of properties. Mr Roi states the house is cedar, and he accepts that the north side of the premises has faded, and as such it would impact the tenant’s enjoyment of the premises and entertaining outside the premises.
The tenant states that she only moved in because she was of the understanding the premises were to be stained not long following. Analysis
The tenant seeks compensation because the outside of the premises has not been stained, and therefore was unsightly. The landlord agrees with the tenant that the weatherboards have faded and this work needs to be completed. While one side of the house has recently been stained, the side used by the tenant for entertaining has not. What the parties do not agree on, is what level of compensation should be provided.
It is clear that the outside of the dwelling was faded when the tenant rented the premises, and I doubt that over the intervening few years, the situation would have changed dramatically.
I have been provided with text messages from the start of the tenancy, where the landlord advised that “At some point it will be re-stained on the outside to bring the original look back”. I have seen no evidence of the landlord having undertaken to have that work done within a specific time period, only “at some point”. To that extent, the tenant considered that the premises were worth $1,050.00 for rental at the start of the tenancy, and that would have been with the walls in a materially similar state to what they are now.
The tenant considers that she should receive compensation of $300.00 rent per week because the staining has not been completed. I recognise that during the tenancy the tenant dropped the rent payments to $750.00, but I do not consider there is evidence to show that the landlord had agreed that this would be an ongoing reduction, so as to find the landlord is now bound to that rent level.
I would accept that given the landlord’s undertaking in 2021 that the walls would be stained at ‘some point’, does given an indication that the landlord intended it to have occurred before now. Some walls have been stained, but not all.
I am not persuaded that the fact of the walls not having been stained would have materially limited the tenant’s enjoyment of the premises, but it is fair that some level of compensation is provided for a failure to have stained the walls by now. I recognise the landlord has previously accepted a lower rental level until 8 September 2023. Considering any likely detriment to the tenant, I consider a fair level of compensation for the landlord to now pay then tenant, would be $500.00, about a half week of rental for the premises. I cannot accept that the fact of the premises not having been stained, would in reality have significantly reduced the amenity of the premises for the tenant, given she was satisfied in renting the premises with faded cedar at the start of the tenancy. Work following fire of neighbouring house
There was a large fire to a neighbour’s dwelling. This has impacted this tenancy with respect to cracking windows another other impacts. The tenant states that she has needed to clean the inside of the tenancy, and that the fire has caused damage to both the house and some of her belongings outside the tenancy. The tenant is claiming for her time in undertaking the remediation work.
The landlord states that he considers this is an issue of ‘loss of amenity’. The landlord states that as part of the remediation work the landlord did contract a range of contractors. But the landlord disputes that they did not work efficiently with getting the work completed. The landlord agreed that there should be some compensation. However in terms of the damage to the tenant’s outdoor furniture, that would fall within the contents policy for the tenant.
The tenant says that when she raised the fire with the landlord, the landlord did not come to inspect the premises Analysis
The tenant has claimed $3,125.00 in compensation relating to the fire of the neighbouring property, relating to a range of matters including: a. Engaging with the fire brigade. b. Engaging with the landlord and neighbour’s insurer. c. Facilitating replacement of cracked windows including window film. d. Engaging with scaffolders. e. House cleaning
The tenant states she spent 62 hours on fire-related matters.
The fire involved a neighbour’s property, and of course that was outside of the landlord’s control. In order for the landlord to be liable for any compensation, that must relate to a breach committed by the landlord. The tenant has not related her claim to any legal obligations held by the landlord, and in my assessment, many of the items the tenant has claimed, fall outside the scope of the landlord’s obligations to her.
The landlord is responsible for maintaining the tenancy, and if work was needed to repair fire-related damage to the dwelling, then I agree the landlord is liable for that. I accept that the tenant has spent time in assisting the landlord with what would be maintenance, and that should be compensated.
The landlord is not however responsible for cleaning the premises or damage to tenant belongings from the fire. The landlord is required to provide the premises reasonably clean at the start of the tenancy, not during the tenancy. While the tenant may have a claim against the neighbours, that does not mean the landlord is responsible for that.
I do consider it reasonable to order the landlord to compensate the tenant a sum for her assistance with the remediation to the dwelling, but I consider a fair amount of compensation in the circumstances would be $1,000.00, about one week of rental. Compensation for lack of maintenance
The tenant states that the landlord has not properly maintained, the tenancy stating there is bamboo growing from the neighbour’s premises, causing shading to the tenancy dwelling and resulting in spiders, mosquitoes and dampness. The tenant says that she treated the spiders, and she seeks compensation for that. The tenant says that she would do the spraying herself. The tenant did not have receipts.
In response, the landlord agrees that compensation for the spiders should be ordered.
The tenant also claims compensation for a water leak under the house. The tenant says the leak resulted in a water usage of around $140.00 based on the water bills, and she also claims $200.00 for her time to show the leak to the plumber.
The landlord states that the tenant’s time was showing the plumber where the leak was, as someone needed to be there. The tenant says he did not go to the premises given it was an emergency situation, and it would have taken longer for him to get there than it would take the plumber to arrive. Analysis
The evidence is that the bamboo is growing in the neighbours property, and therefore the landlord has no ability to remove it or to force the neighbour to remove it. I cannot see any basis to order the landlord to pay compensation to the tenant, for something on the neighbour’s property.
However the evidence is that the landlord trimmed the bamboo and that was left on the grounds of the tenancy. Certainly, the landlord could lawfully trim any bamboo over his boundary, but should have taken that away after doing so.
I have not received any reports from a qualified expert linking insects in the premises to the bamboo that had been left on the ground, which would be the landlord’s only breach here. But neither has the tenant provided receipts for chemicals used to treat the spiders. The tenant has not justified the $1,200.00 claim she has made here.
The RTA requires that the tenant keep the premises reasonably clean and tidy, and that could extend to dealing with insects, which are a reality of life in any dwelling in New Zealand.
But I am minded that the landlord was agreeable to provide compensation of some level, and that being the case, in order to draw a line under this dispute I will order the payment of a nominal $250.00 to the tenant.
Finally there is the claim for compensation for the water leak. There is no dispute that there has been a water leak. The landlord also agrees to compensate the tenant for the water used of $140.00 so that is ordered by consent.
The tenant has claimed $200.00 for her work with meeting the plumber.
The RTA requires that tenants notify the landlord if maintenance work is needed, which this water leak would fall within. That is a statutory obligation, the tenant cannot claim compensation for that. But here I accept the tenant met the plumber who attended urgently to fix the leak. That would strictly be the landlord’s responsibility, but it is fair for the tenant to be compensated for her time. But I am not persuaded that an order of $200.00 would be reasonable, I consider $100.00 would be a reasonable amount and that is ordered.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant has applied for name suppressions. Given I do not consider the tenant has been wholly or even substantially successful in the proceedings, name suppression must be declined.

Tenancy Tribunal case 4851142 — Rent arrears at Unit/Flat 4, 121 Shelly Beach Road, St Marys Bay,

At a glance

Tenancy Tribunal case 4851142 — Rent arrears at Unit/Flat 4, 121 Shelly Beach Road, St Marys Bay,

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIM

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIM

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions