Published tribunal order
Tenancy Tribunal case 4883002 — State of repair at 7 Loughanure Place, Massey, Auckland 0614
Decided 7 Oct 2024 · Published 7 Oct 2024 · Application 4883002
Tenant favoured
- State of repair
- Property damage
Order
- Dada Fan must pay Nancy Ashley Williams $3,420.44 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,560.00 (Bond number 3740966-001 ) to Nancy Ashley Williams immediately.
Reasons
- Both parties attended the hearing. The tenant’s husband attended as a support person. The landlord’s husband attended as a support person. The landlord was assisted by a Mandarin interpreter, Mr Luo.
- This was a fairly long tenancy of almost six years. The tenancy began on 5 August 2018 and ended on 8 June 2024. The tenant moved into the property with her husband and three children, then aged 3 months, 2 years and 6 years.
- The tenant has filed a claim seeking compensation for the landord’s failure to maintain. The tenant says that the landlord: a. Failed to repair the floor in the dining room after a major leak; b. Did not provide working smoke alarms; c. Did not replace the burglar alarm when it broke; d. Did not repair or replace the dishwasher when it broke; and e. That there was black mould at the property.
- The landlord has also filed a claim seeking compensation. The landlord says that the tenant: a. Damaged the walls, plastered the holes, but did not repaint; b. Left stains on the carpet and that the carpet had to be cleaned and then replaced; c. Made a minor change to the outdoor area which was not properly reinstated as there was damage to an area of fibre cement weatherboard and staples left in a wooden post; and d. Used the property for commercial use (beauty salon treatments in the garage). Onus and evidence
- As with all claims that come before the Tribunal, the obligation is on the party who is bringing a claim to prove that claim to the civil standard (on the balance of probabilities).
- For the sake of brevity I have not referred to all of the evidence filed and referred to at the hearing but the parties can be assured that I have carefully reviewed all of the evidence in reaching my decision. Tenant’s claim
- All of the tenant’s claims relate to section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and comply with any relevant enactment in relation to buildings, health and safety. Dining room floor
- The tenant said that there was a flooding event in July 2023 where, due to what appears to have been a burst pipe in the laundry, the dining room floor flooded. This meant that an area of the dining room floor became very wet along one wall and into the corner of the room.
- The tenant said that she immediately advised the landlord who attended the same day and identified the problem and dried out the carpet using a wet & dry vacuum. However the landlord did not return to follow up and review the state of the floor. The floor in the dining room was made of particle board which had become saturated.
- The tenant provided photos and played two videos at the hearing which showed the floor had sunk along one side of the room and into the corner, and that there was mould in that area.
- On 27 July 2023 the tenant contacted the landlord to remind them that the floor had been damaged and needed to be fixed. The landlord responded querying which floor the tenant was referring to and asked if there was another leak. The tenant replied saying “No not leaking again the floor that was damaged frm the leak is still not fixed u saw last time” immediately followed by “Same floor u vacuum all water frrm by the dinner table” and then “Still not fixed an sinking a lot more now”.
- The landlord responded saying “Send us pictures by email which sink, kitchen sink, or laundry sink”.
- The tenant said that she was busy with her young family and that the landlord took no further steps and did not come to view the floor. She said that she and her family could not properly use the dining room as the floor had sunk in that area and they were concerned for their children’s safety. They could not all sit around the dining table as they did not want to put further weight on the area.
- Approximately nine months later, on 15 April 2024, that the landlord contacted the tenant regarding a rent increase and the tenant responded noting that the floor has still not been fixed. The landlord then made an insurance claim and the insurance assessor attended to assess the damage (on 28 April 2024).
- The landlord said that she and her husband had attended immediately when the leak occurred and thought that they had fixed the burst pipe and had dried the carpet and did not understand that that there was any issue with the floor. The landlord said that when the tenant contacted her again she did not understand what the tenant was talking about. She said that the tenant’s reference to the floor and “sinking” made her wonder if there was something wrong with the “sink”.
- The landlord said that she asked the tenant for a photo of the issue but the tenant did not provide one and so she took no further steps until the tenant raised the issue again following the notice of rent increase. At that stage she said that it took some time to make an appointment with the tenant to come over to view the problem.
- The landlord said that the affected area of floor was only approximately 1/5 th of the dining room area and that tenants still used that area for their dining table and that there was no problem with the three bedrooms, kitchen, lounge, laundry, toilet and garage.
- The landlord said that she did not receive a report from the insurer but that she did receive a cash settlement sum from the insurer. She confirmed that the section of floor has now been replaced (following the end of the tenancy).
- I consider that the landlord has breached her obligations to repair and maintain the property. The landlord failed to inspect and repair the flooring following the flooding after it occurred and did not do so when the tenant contacted them again on 27 July 2023 and told them that the floor was sinking.
- I accept that there was some genuine confusion on the landlord’s part, due to communication difficulties, regarding the tenant’s reminder message of 27 July 2023 but the tenant’s message clearly identified the area that had been damaged and the landlord should have followed up following the flooding even if they were not reminded to do so.
- The fact that the landlord has become confused does not alter the landlord’s maintenance obligations. In any event the landlord was certainly aware that repairs were required, whether to a sinking floor or a sink, and should have taken steps to identify what repairs were required. Smoke alarms
- The tenant said that there were no smoke alarms as the property, and that when the house next door burnt down they became concerned and contacted the landlord. The landlord then provided smoke alarms but after two weeks they started beeping.
- The landlord said that there were smoke alarms at the start of the tenancy and that they had used a property manager to obtain tenants who would otherwise have refused to list the property. The landlord provided ingoing inspection photos showing smoke alarms.
- The landlord said that when the tenant contacted them they provided new smoke alarms with batteries that should last 10 years, and that the tenant never contacted her to say that there was any issue with the smoke alarms. She said that it is the tenant’s responsibility to replace smoke alarm batteries.
- I do not consider that the tenant has proved that the landlord has not provided/failed to maintain the smoke alarms. Dishwasher
- The tenant said that the dishwasher did not work for most of the tenancy and started leaking in July 2020. She notified the landlord who asked her to arrange for repairs, which then took place, but in March 2021 the dishwasher stopped working and was not replaced.
- The landlord said that she initially repaired the dishwasher but when the dishwasher broke she asked the tenant about it but the tenant said that she didn’t need to use the dishwasher and that there was no need to repair it.
- The tenant agreed that she had told the landlord that there was no need to repair the dishwasher. She said that the landlord had just put in a new heat pump and she did not want to put the landlord under further financial pressure.
- I do not consider that the tenant has proved that there has been any breach of the landlord’s obligations. Burglar alarm
- The tenant said that the burglar alarm stopped working in 2018 and that the landlord came and turned it off at the mains and left it like that. The landlord then purchased a new “alarm” from China in May 2023 but that this was just a cheap screen connected to a wire purchased from Temu (or similar) and that it didn’t work. She said that she tried it out but the siren was so quiet that it couldn’t even be heard from outside.
- The tenant said that they told the landlord that the new alarm didn’t work and wasn’t fit for purpose but the landlord did nothing about it. The alarm was replaced when they were moving out.
- The landlord said that they were told that the burglar alarm stopped working and confirmed that they had purchased a new alarm from China and provided a receipt which confirms that the alarm was purchased online for USD$79.95.
- I find this claim proved on the balance of probabilities. The tenant did not have a burglar alarm for much of the tenancy. Mould
- The tenant said that there was mould in various areas including inside cupboards.
- The tenant produced photos of some of the mouldy areas but these were difficult to assess.
- The landlord said that she was never told about the mould and the tenant confirmed that she had not raised this issue with the landlord.
- I do not consider the tenant’s claim in respect of mould to be proven. There was some mould visible in the photos but the tenant has not proved that the mould occurred because of any breach of the landlord’s obligations.
- I accept that there was mould around the area of the damp carpet but have already factored that into the compensation for the landlord’s failure to maintain that area as set out below.
What compensation is the tenant entitled to?
- The landlord provided evidence showing that she did attend to some maintenance items over the years. I have found however that the landlord failed to maintain the areas of flooring in the dining room and that the tenant was without a burglar alarm for almost the entire duration of the tenancy.
- While I accept that the area of damaged flooring in the dining room was a fairly small percentage of the house overall, the photos provided by the landlord to show the damaged area of floor to be between one-third and one-half of the dining room. The damage affected the tenant and her family’s use of that room, which is an important gathering place in any home. The floor was damaged for almost the last year of the tenancy.
- The tenant was paying for property with a burglar alarm but did not in fact have the use of an alarm and so did not have the benefit of that additional security.
- It is not always possible to be precise in awarding compensation. I can only make my best estimate of the loss of amenity value to the tenant.
- When the tenancy began the rent was $500 per week but by the time the tenancy ended the tenant was paying $575 per week. The tenant paid approximately 30,000 in rent for the last 12 months of the tenancy and (roughly) $165,000 over the entire duration of the tenancy.
- I consider that, in the context of the total rental charged for this tenancy, total compensation of $3,500 to be appropriate compensation for the lack of amenity value for the lounge floor in the last 12 months of the tenancy and the lack of working burglar alarm for much of the tenancy. Landlord’s claim
- The landlord claims that the tenant caused damage, failed to return the premises to the same condition after a minor change and was running a business from the property. Damage
- 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 RTA.
- Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
- Where the damage is caused carelessly, 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 (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
- Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
- Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
- 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. Walls
- The landlord said that there were holes in various walls and that the tenant had plastered over the holes but had not painted those areas.
- The landlord claimed $88.00 (Mitre 10 Mega) and $103.86 (Bunnings Warehouse) for paint and $494.00 for labour for painting (invoice from Build Force NZ dated 6 June 2024).
- The tenant acknowledged that there were holes but said that she and her husband had agreed with the landlord that they would repair them. She said that they had plastered over the holes and had sanded them but that they could not paint the holes the same day as the plaster needed to dry so they left the paint on the bench so they could return the following day. They said that the landlord would then not give them access to do the painting.
- The landlord confirmed that the parties had agreed that the tenant and her husband would fix the holes in the walls but that after the holes had been plastered she changed her mind as the tenants had filed their claim in the Tribunal and she felt the relationship had deteriorated. She said that the paint that was left was insufficient to do all of the painting.
- It is unfortunate that the landlord did not allow the tenant and her husband to return and paint over the holes, as it seems that she was quite prepared to do so and had intended to do so. There is however no obligation on a landlord to allow a tenant to return to the property once the tenancy has ended.
- In the end the tenant did not have to spend time painting the areas as this was done by the landlord. The landlord purchased 8 litres of paint in total and has done more than just paint over the areas that have been plastered. The landlord now has newly painted walls. I therefore consider there to be some degree of betterment, and I note in particular that the ingoing inspection report shows two existing dents/holes in the lounge wall.
- I order compensation to the landlord of $100.00 for the painting which I consider to be a reasonable amount for the painting that relates to the plastered areas that are the responsibility of the tenant. Carpet
- The landlord said that the tenant kept a cat at the property in breach of the tenancy agreement and that the cat made marks on the carpet.
- The landlord provided photos of the carpet which show some stains although it was difficult to see how many rooms had been affected.
- The landlord sought $276.00 for carpet cleaning (invoice from Deep Clean dated 6 June 2024) but said that the carpet had to be replaced. She also sought $1,200 being the insurance excess for replacing the carpet.
- The tenant said that her son was given a cat in the last 3 – 4 months of the tenancy and that the cat slept in the laundry while it was toilet training. She said that there were some marks on the carpet as her children were young and inevitably things were dropped on the carpet from time to time. She said that she paid for a professional carpet cleaners when she moved out but that some of the stains could not be removed.
- I find that damage to the carpet occurred during the tenancy. However in ordering compensation I must take into account betterment and depreciation. In calculating depreciation, I must take into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
- The Inland Revenue Department IR265 provides general depreciation rates for residential rental property chattels. These provide that carpet has an estimate useful life of eight years.
- The landlord bought the property in 2016 and is not certain of the age of the carpet. Even if the carpet had been new when the property was purchased it is now eight years old.
- I do not consider that it is appropriate to award any compensation for the carpet as it was old and due for replacement. Failing to return premises after doing minor change
- On or before the expiry of a tenancy the tenant must return the premises to a condition that is substantially the same as the condition the premises were in prior to the minor change being made. See 42B(4) Residential Tenancies Act 1986
- The landlord says that the tenant asked to put up a canopy outside and did so but when she and her family left there were a large amount of staples left in a wooden post and a fibre cement weatherboard had been damaged. The landlord provided a photo of the post and weatherboard.
- The tenant denied causing damage. She said that she and her husband had done improvements to the property (for example they had constructed and gibbed a wall in the garage). She said that the landlord apparently appreciated them doing so at the time, was now only focussed on minor issues that were well outweighed by the improvements they had made.
- The landlord did not provide any photos of the area from the start of the tenancy and so is unable to prove that the damage caused occurred during the tenancy. Furthermore, the landlord has not repaired the area and was unable to provide an invoice.
- This claim is not proved. Conducting business from tenancy
- The landlord said that the tenant was running a beauty business from the property as she has set up a workspace in the garage, in breach of the tenancy agreement.
- The tenant said that she had not set up a business. She said that she was learning how to do some beauty treatments and used the garage space to practice on friends that came over. She said that her husband had done quite a bit of work renovating the garage for the landlord and that the landlord had told her how great it looked and never raised any concerns that the tenant might be running a business there.
- I do not consider that the landlord has proved that the tenant was running a business from the garage.
- This claim is dismissed. Filing fee and name suppression
- Because Nancy Ashley Williams has substantially succeeded with the claim I have reimbursed the filing fee.
- Neither party sought an order for name suppression.