What was the outcome of Tenancy Tribunal case 4851981?

The tribunal order states: Naison Magonyao to pay Rentready Limited As Agent For Rob Bowen $1,949.99

How much money was awarded in case 4851981?

Rent Arrears: $1,949.99 awarded to landlord

What type of tenancy dispute was case 4851981?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4851981?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10707879-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4851981?

The tribunal order states: Naison Magonyao to pay Rentready Limited As Agent For Rob Bowen $1,949.99

How much money was awarded in case 4851981?

Rent Arrears: $1,949.99 awarded to landlord

What type of tenancy dispute was case 4851981?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4851981?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10707879-Tenancy_Tribunal_Order.pdf.

9 Westra View, Tawa, Wellington 5028 Tenancy Tribunal Case 4851981 — Rent arrears

Claims and awards in Tenancy Tribunal application 4851981 — net $1,949.99 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$1,949.99	Rent arrears
Net award	$1,949.99
Bond	$2,600.00
Total payable by Tenant to Landlord	$1,949.99

Order

Naison Magonyao to pay Rentready Limited As Agent For Rob Bowen $1,949.99 from the bond, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,600.00 (3252896-005) immediately apportioned as follows: Rentready Limited As Agent For Rob Bowen:$1,949.99 Naison Magonyao: $650.01

Reasons

The Tribunal must consider an application filed by the landlord against the tenant.
Both parties appeared at the hearing today. DescriptionLandlordTenant Rent arrears$1,949.99 Total award$1,949.99 Bond$1,949.99$650.01

BACKGROUND

This is an assigned periodic tenancy. The ‘original’ tenant was Tawanda Noble Zondiwa, and that tenancy commenced on 8 May 2023.
On 14 November the tenancy was assigned to Naison Magonyo. Mr Magonyo had not previously lived in the tenancy.
Ultimately the tenancy for Mr Magonyo ended on 25 March 2024.
When the premises were returned to the landlord, the landlord found there to be damage to a retaining wall which is the subject of this claim. The landlord claims that hot ash was tipped behind the retaining wall causing the damage.
The landlord had BC Bowen Contracting Limited replace the damaged timbers. An invoice has been provided from the contractor for $1,352.24. The landlord seeks compensation for fixing the retaining wall.

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.

RENT ARREARS

The landlord has applied for an order that the tenant pay rent arrears of $1,949.99 being rent arrears to the tenancy end date of 25 March 2024.
The landlord has provided the Tribunal with a rent ledger. I have no reason to consider that record to be incorrect.
The tenants agree they owe this money.
The landlord has established that the tenant is in arrears of the amount claimed, and that is ordered in full.

COMPENSATION

The landlord has claimed compensation for a burnt retaining wall. The landlord states that the tenant has tipped hot ash from the wood burner fireplace over the back of the retaining wall, which has burnt the retaining timbers.
The tenant’s position is that the damage to the wooden retaining wall was present when they took over the tenancy. The strong evidence from the tenants was that this damage was there when they moved in, and they did not cause it.
The tenants also say there were continuous problems with the tenancy including water leaks and mould. The tenants said that they had raised these concerns with the landlord, but the landlord did not do anything about that. As I explained to the tenants, the claim before me is one from the landlord about the rent and fireplace. The tenant is of course able to file their own claim against the landlord, but that is not something I can assist with today.
In response, the landlord said that they did an inspection in January 2024 and did not notice any damage then (otherwise it would have been noted in the inspection report), and further they were receiving complaints from neighbours about the smoke coming from the tenancy. The property manager advised that the damage at the end of the tenancy was obvious.
The tenants confirmed that they were using the inside fire during their tenancy to stay warm. Importantly however, the tenants provided a photograph which is date stamped from 23 November 2023, which shows the retaining wall in the background which has the same burn marks seen in the landlord’s photographs at the end of this tenancy. Analysis
With any compensation claim, to receive an order the party claiming the compensation must incur a loss. In short, the compensation is intended as best money can do, to compensate for the actual loss incurred.
Where a landlord claims compensation for damage caused by a tenant, the landlord must first prove the damage 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.
Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
Because this is an assigned tenancy, the original tenant is only liable for damage to the date of assignment 1 , and the incoming tenant (Mr Magonyao) only liable for damage following the assignment. To put that another way, Mr Magonyao is not liable for damage caused by the tenant prior to his taking over the tenancy.
In this case, I must conclude that the landlord has not proven that the damage to the retaining wall was caused during this tenancy, or more particularly after the tenancy was assigned to Mr Magonyao on 14 November 2023. In that regard, there is very compelling evidence that the damage was present on 23 November, as it is shown then in the date stamped photograph. While it is certainly possible it occurred between 14 and 23 November, on balance that must be unlikely.
Further I found the tenants to be compelling witnesses, and I accept their evidence that they did not tip the hot embers over the wall.
For those reasons, I find the landlord has not established that the damage occurred during this tenancy, meaning the landlor’ds claim for compensation for the wall damage must be dismissed.

Claims and awards in Tenancy Tribunal application 4851981 — net $1,949.99 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$1,949.99	Rent arrears
Net award	$1,949.99
Bond	$2,600.00
Total payable by Tenant to Landlord	$1,949.99

Order

Naison Magonyao to pay Rentready Limited As Agent For Rob Bowen $1,949.99 from the bond, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,600.00 (3252896-005) immediately apportioned as follows: Rentready Limited As Agent For Rob Bowen:$1,949.99 Naison Magonyao: $650.01

Reasons

The Tribunal must consider an application filed by the landlord against the tenant.
Both parties appeared at the hearing today. DescriptionLandlordTenant Rent arrears$1,949.99 Total award$1,949.99 Bond$1,949.99$650.01

BACKGROUND

This is an assigned periodic tenancy. The ‘original’ tenant was Tawanda Noble Zondiwa, and that tenancy commenced on 8 May 2023.
On 14 November the tenancy was assigned to Naison Magonyo. Mr Magonyo had not previously lived in the tenancy.
Ultimately the tenancy for Mr Magonyo ended on 25 March 2024.
When the premises were returned to the landlord, the landlord found there to be damage to a retaining wall which is the subject of this claim. The landlord claims that hot ash was tipped behind the retaining wall causing the damage.
The landlord had BC Bowen Contracting Limited replace the damaged timbers. An invoice has been provided from the contractor for $1,352.24. The landlord seeks compensation for fixing the retaining wall.

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.

RENT ARREARS

The landlord has applied for an order that the tenant pay rent arrears of $1,949.99 being rent arrears to the tenancy end date of 25 March 2024.
The landlord has provided the Tribunal with a rent ledger. I have no reason to consider that record to be incorrect.
The tenants agree they owe this money.
The landlord has established that the tenant is in arrears of the amount claimed, and that is ordered in full.

COMPENSATION

The landlord has claimed compensation for a burnt retaining wall. The landlord states that the tenant has tipped hot ash from the wood burner fireplace over the back of the retaining wall, which has burnt the retaining timbers.
The tenant’s position is that the damage to the wooden retaining wall was present when they took over the tenancy. The strong evidence from the tenants was that this damage was there when they moved in, and they did not cause it.
The tenants also say there were continuous problems with the tenancy including water leaks and mould. The tenants said that they had raised these concerns with the landlord, but the landlord did not do anything about that. As I explained to the tenants, the claim before me is one from the landlord about the rent and fireplace. The tenant is of course able to file their own claim against the landlord, but that is not something I can assist with today.
In response, the landlord said that they did an inspection in January 2024 and did not notice any damage then (otherwise it would have been noted in the inspection report), and further they were receiving complaints from neighbours about the smoke coming from the tenancy. The property manager advised that the damage at the end of the tenancy was obvious.
The tenants confirmed that they were using the inside fire during their tenancy to stay warm. Importantly however, the tenants provided a photograph which is date stamped from 23 November 2023, which shows the retaining wall in the background which has the same burn marks seen in the landlord’s photographs at the end of this tenancy. Analysis
With any compensation claim, to receive an order the party claiming the compensation must incur a loss. In short, the compensation is intended as best money can do, to compensate for the actual loss incurred.
Where a landlord claims compensation for damage caused by a tenant, the landlord must first prove the damage 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.
Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
Because this is an assigned tenancy, the original tenant is only liable for damage to the date of assignment 1 , and the incoming tenant (Mr Magonyao) only liable for damage following the assignment. To put that another way, Mr Magonyao is not liable for damage caused by the tenant prior to his taking over the tenancy.
In this case, I must conclude that the landlord has not proven that the damage to the retaining wall was caused during this tenancy, or more particularly after the tenancy was assigned to Mr Magonyao on 14 November 2023. In that regard, there is very compelling evidence that the damage was present on 23 November, as it is shown then in the date stamped photograph. While it is certainly possible it occurred between 14 and 23 November, on balance that must be unlikely.
Further I found the tenants to be compelling witnesses, and I accept their evidence that they did not tip the hot embers over the wall.
For those reasons, I find the landlord has not established that the damage occurred during this tenancy, meaning the landlor’ds claim for compensation for the wall damage must be dismissed.

Tenancy Tribunal case 4851981 — Rent arrears at 9 Westra View, Tawa, Wellington 5028

At a glance

Tenancy Tribunal case 4851981 — Rent arrears at 9 Westra View, Tawa, Wellington 5028

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

RENT ARREARS

COMPENSATION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

RENT ARREARS

COMPENSATION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions