What was the outcome of Tenancy Tribunal case 4902953?

The tribunal order states: The Bond Centre is to pay the bond of $1,420.00 (6488252-005) immediately

How much money was awarded in case 4902953?

Filing Fee: $20.44 awarded to landlord; Cupboard Latch: $195.00 awarded to landlord; Property Damage: $650.00 awarded to landlord

What type of tenancy dispute was case 4902953?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4902953?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11510351-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4902953?

The tribunal order states: The Bond Centre is to pay the bond of $1,420.00 (6488252-005) immediately

How much money was awarded in case 4902953?

Filing Fee: $20.44 awarded to landlord; Cupboard Latch: $195.00 awarded to landlord; Property Damage: $650.00 awarded to landlord

What type of tenancy dispute was case 4902953?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4902953?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11510351-Tribunal_Order.pdf.

54 Taha Road, Waimauku, Auckland 0841 Tenancy Tribunal Case 4902953 — Property damage

Claims and awards in Tenancy Tribunal application 4902953. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Insurance excess for garage door	$650.00	Repairs: Insurance excess for garage door
Repairs: Cupboard latch	$195.00	Repairs: Cupboard latch
Filing fee reimbursement	$20.44	Filing fee reimbursement

Claims and awards in Tenancy Tribunal application 4902953. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Insurance excess for garage door	$650.00	Repairs: Insurance excess for garage door
Repairs: Cupboard latch	$195.00	Repairs: Cupboard latch
Filing fee reimbursement	$20.44	Filing fee reimbursement

Order

The Bond Centre is to pay the bond of $1,420.00 (6488252-005) immediately apportioned as follows: Barfoot & Thompson Limited As Agent For Debbie Young: $865.44 James Martin, Donna Martin and Sebastian Martin: $554.56
The tenants’ claim for breach of quiet enjoyment is dismissed.

Reasons

Both parties attended the hearing.
Both parties agreed that they attended a mediation at which it was agreed that all but $1,420.00 of the bond could be distributed.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The claim for rent arrears and one of the claims for damages were settled at mediation. Burden of proof
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. One of these standards is that it is for the party bringing the application to establish their claims on the balance of probabilities. That means the party bringing the claim must establish that what they are claiming is more likely than not. This is referred to as the burden of proof. Independent witnesses, corroborating documents and photographs are an important part of discharging the is 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.
If the claim is not established to the balance of probability, it must be dismissed.

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. See sections 40(2)(a), 41 and 49B Residential Tenancies Act, 1986 (the “RTA”).
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.
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. The garage door
The landlord claims the garage door was damaged during the tenancy. The damage included two dents to the internal frame of the garage door. The landlord produced an invoice from their insurance company for $650.00 (which has been paid by the landlord) and photographs which clearly show the damage. The landlord wants to be compensated for this amount.
The tenants accepted that the damage occurred during their tenancy and the day on which the damage occurred. However, the tenants stated that they weren’t sure how the damage actually occurred.
The tenants described an incident which involved their son getting the emergency release cord for the garage door, caught in their car door shortly before the tenant began reversing his vehicle out of the garage. This deactivated the mechanism of the door.
There was much made of the length of the emergency release cord and whether or not it had been replaced, whether or not this voided the insurability of the door, whether or not the tenants requested insurance documents and other information, and whether or not this information was given.
In my view these submissions do not affect the outcome of the claim. The tenants accept that the damage occurred during their tenancy and accepted the day on which the damage occurred (the day of the emergency cord incident). No other information was presented which could explain the damage to the garage door, or which negates the claim made by the landlord.
I am satisfied on the balance of probabilities that the damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
I determine the damage to be the result of carelessness rather than intention.
The amount ordered is proved. The pantry latch
The landlord claims the tenant damaged a latch on a pantry cupboard in the scullery.
The latch was a mechanical/electrical latch that opened the cupboard automatically when the door was pushed.
The landlord produced an invoice for $195.00 and a photograph that shows the metal latch to be snapped. It appears from the photograph that the latch has been twisted or forced before it finally broke. That is to say, the damage doesn’t appear to be metal fatigue caused by repeated use over a long period of time.
The tenants stated that they didn’t know how the latch had broken, but there had been a power surge at the property and this may have caused it.
The tenants also challenged the invoice saying that the invoice states “2” under “units” even though the serviceman was only on site for 40 minutes, before going to the owner’s house (which is on the same property).
The landlord stated that the owner told her she received a separate invoice for the work done at her premises.
I do not have any information regarding what “2 units” accounts for: It may refer to a callout fee plus one hour or part thereof, or it may refer to two 20-minute units. I do not consider $195.00 for a callout fee, 40 minutes of work and a mechanical/electric hinge replacement to be excessive.
I accept the damage is more than fair wear and tear, and the tenant hasn’t disproved liability.
The amount ordered is proved.
In awarding these amounts, I have considered betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. I have also taken into account the age and condition of the items and their likely useful lifespan. The internet
The premises that the tenants rented is on a property that also has a minor dwelling. From the outset of the tenancy, the minor dwelling was occupied by the owner of the property. The owner engaged Barfoot and Thompson to manage the tenancy. A property manager called “Jenny” was assigned to the tenancy. The tenants stated that they have a long standing and very positive relationship with Jenny because Jenny managed a previous tenancy of theirs.
During the hearing there was some confusion regarding the start date of the tenancy agreement. The tenants produced their copy of the tenancy agreement, but inserted into this was a copy of the tenancy application minus the header page. The tenancy application is dated 12 April 2023. After comparing documents it was agreed the actual tenancy agreement was signed on 19 April 2023.
On 17 April 2023, the owner advised the tenants that she would be taking the internet connection with her from the main house which she had been living in and which the tenants were moving into, to her minor dwelling 100 metres away on the same property. This meant the tenants would have to organise their own internet connection and configure the hardware to their equipment.
When the tenants contacted Chorus, they were told that Chorus no longer supported copper internet connections. There was no fibre to the rural address and the wireless connection was poor. The television that came with the tenancy only worked with internet connection.
According to the tenants, it would have made more sense for the owner to leave the house with the established internet connection intact, install a new connection to the minor dwelling. But given that Chorus did not support copper connections anymore this was going to be a headache, and the owner did not do this.
The headache was passed on to the new tenants who engaged with Chorus. After four months of intense and frustrating communications the tenants finally had their copper connection reconnected. In a nutshell, this included getting a tech-company to configure their equipment which the tenants paid for themselves.
At the end of the tenancy, the owner moved back into the premises and has had to engage a tech-company to reconfigure the connection to her equipment. In so doing she has incurred a bill for $575.00 which she would like the tenants to pay. No statutory authority was given in support of this request.
A tenant may make minor changes to a premises, with the landlord’s consent. At the end of the tenancy a tenant is then required to return the premises to the condition it was in prior to the minor changes being made. See RTA section 42, 42A, 42B.
In this case I have considered whether minor changes were made to the premises and I have not found any authority for a C4 system being described as part of the premises. I also consider that given the tenants were not required to seek the consent of the landlord to configure the wireless system to their equipment, this does not amount to a minor change, which is regulated by the above RTA sections.
Therefore I cannot find a basis for ordering the tenants to pay for the landlord’s expenses in reconfiguring the C4 system.
I note that if a new tenant rather than the owner had moved into the house, the new tenant would be responsible for expenses configuring the C4 system, just as the old tenant had been. It is an equitable outcome therefore, that any incoming occupants are responsible for these set up costs.
This claim is not proved. Breach of quiet enjoyment
James Martin, Donna Martin and Sebastian Martin claim the landlord has harassed them.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenants raised many complaints about the owner of the property and about the premises which do not fit with a claim for breach of quiet enjoyment. No other claims have been filed as part of this application and it would not be correct for me to allow and then consider other claims, given that the respondent has not had an opportunity to consider the claims or prepare a response.
For instance, one of the complaints involved an air-conditioning unit that broke down and may not have been repaired in a timely fashion. Whereas this may have succeeded as a claim for failing to maintain under section 45 of the RTA, even the alleged delay aspect does not in my mind amount to a breach of quiet enjoyment. The same is the case for other complaints of the tenant such as the house needing a clean and the water tanks not being clean. I put these and other similar complaints to one side in considering the claim for breach of quiet enjoyment.
Complaints from the tenants which I am satisfied in law could amount to a breach of quiet enjoyment include the following: a. Many texts from the landlord telling them how to live at the property; b. Constant weed spraying around the tenants’ gardens; c. Looking into the cupboards and drawers at the tenants’ private belongings during routine tenancy inspections.
The tenants claim that they received many texts from the landlord that became intrusive. These texts included notification that the tenants had left the boot of their car open, that they need to pack down their cardboard before putting it in the (shared) recycle bin, that the garage door was being left open, questions about where people leave their shoes, advice about picking ice up off the floor and whether the net curtains should be left open or closed.
The texts that the tenants referred to also included notices of maintenance or repair work that was to be done at the property. These are notices that landlords are required by law to give.
When I look at these notices, I accept they seem incessant; the notifications regarding work around the gardens occur approximately every two weeks. But they are notices that are required; to attend without giving notice could be a breach of the RTA; to attend after giving notice is what makes the attendance lawful.
As to the advisory notices that the landlord gave: I can see that the relationship between the landlord and tenant deteriorated across the tenancy, but I see that the response from the tenant to some of the texts is cordial and friendly. The car boot being left open is one in which the tenants’ response appears to illustrate a good relationship: July 2023: “Hey Debbie – thank you! James is finally taking the van back to its owner”.
Another in December is a similar tone but is sent from the tenant: “Hey Debbie– just noticed your car is still home, is everything ok? Not being nosy just checking”.
This indicates to me that at times, possibly through much of the tenancy, the relationship between the tenant and the landlord was healthy and helpful.
The tenant focussed attention on four occasions when the owner got a maintenance person/ helper to spray the borders and the weeds. The tenant referred to it as toxic spraying. There was communication from both sides about this, and no resistance from the tenant. However it appears the tenant was surprised that in a period of two months the landlord’s agent attended on four occasions.
The tenant stated that on one occasion she saw him spraying in her garden amongst her dahlias.
The landlord lived in a separate premises on the same parcel of land. There was no written agreement between the parties that was presented in the hearing, which delineates exclusive use by either party. The property manager stated there was none. In this case, the landlord was acting responsibly in maintaining the grounds. One of the tenant’s points at the beginning of the hearing was that the grounds “were embedded with weeds”.
I do not consider four occasions of weed spraying over a two month period to be a breach of the tenants’ right to quiet enjoyment.
The third point was when the owner chose to attend the property inspections with the property manager.
On the two occasions that the owner did this, the tenant claims she saw the owner go into their walk-in wardrobe and heard her opening drawers and cupboards and looking at their personal belongings.
The property manager, who has the respect and friendship of the tenants, stated that she never saw and never heard the owner opening any drawers or cupboards of the tenants. The property manager stated that she did see the owner go into the walk-in wardrobe, but she pulled the owner out, explained that she was not allowed to do that, and after that they stayed together for both of the inspections.
On balance I prefer the property manager’s version of these incidents. I am not persuaded that the owner repeatedly opened drawers and cupboards without the property manager, who has the respect of the tenants, knowing. There is no record of a written complaint from the tenants to the landlord regarding this, which could be expected if the owner had continued to open drawers and cupboards.
When I consider all of the information about the claim for breach of quiet enjoyment, I am not persuaded that the owner engaged in conduct that formed a pattern of behaviour such as to amount to harassment of the tenants.
This claim is not proved.
Because Barfoot & Thompson Limited As Agent For Debbie Young has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4902953 — Property damage at 54 Taha Road, Waimauku, Auckland 0841

At a glance

Tenancy Tribunal case 4902953 — Property damage at 54 Taha Road, Waimauku, Auckland 0841

At a glance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions