What was the outcome of Tenancy Tribunal case 4916593?

The tribunal order states: No suppression Orders are sought.

How much money was awarded in case 4916593?

Cleaning: $240.00 awarded to landlord; Cleaning: $240.00 awarded to landlord; Cleaning: $16.95 awarded to landlord; Compensation: Leaks: $200.00 awarded to tenant; Compensation: Tree Removal: $50.00 awarded to tenant; Mat: $19.08 awarded to landlord; Property Damage: $160.00 awarded to landlord; Property Damage: $750.00 awarded to landlord; Property Damage: $282.50 awarded to landlord

What type of tenancy dispute was case 4916593?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4916593?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10845700-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4916593?

The tribunal order states: No suppression Orders are sought.

How much money was awarded in case 4916593?

Cleaning: $240.00 awarded to landlord; Cleaning: $240.00 awarded to landlord; Cleaning: $16.95 awarded to landlord; Compensation: Leaks: $200.00 awarded to tenant; Compensation: Tree Removal: $50.00 awarded to tenant; Mat: $19.08 awarded to landlord; Property Damage: $160.00 awarded to landlord; Property Damage: $750.00 awarded to landlord; Property Damage: $282.50 awarded to landlord

What type of tenancy dispute was case 4916593?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4916593?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10845700-Tenancy_Tribunal_Order.pdf.

5 Elliott Street, Taradale, Napier 4112 Tenancy Tribunal Case 4916593 — Property damage

Claims and awards in Tenancy Tribunal application 4916593 — net $1,458.53 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Fly screen replacements	$160.00		Fly screen replacements
Window repairs: bathroom	$282.50		Window repairs: bathroom
Cleaning	$240.00		Cleaning
Cleaning products	$16.95		Cleaning products
Wall repairs	$750.00		Wall repairs
Carpet Cleaning	$240.00		Cleaning
Mat	$19.08		Mat
Compensation: tree removal		$50.00	tree removal
Compensation: leaks		$200.00	leaks
Total award	$1,708.53	$250.00
Net award	$1,458.53
Total payable by Tenant to Landlord	$1,458.53

Claims and awards in Tenancy Tribunal application 4916593 — net $1,458.53 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Fly screen replacements	$160.00		Fly screen replacements
Window repairs: bathroom	$282.50		Window repairs: bathroom
Cleaning	$240.00		Cleaning
Cleaning products	$16.95		Cleaning products
Wall repairs	$750.00		Wall repairs
Carpet Cleaning	$240.00		Cleaning
Mat	$19.08		Mat
Compensation: tree removal		$50.00	tree removal
Compensation: leaks		$200.00	leaks
Total award	$1,708.53	$250.00
Net award	$1,458.53
Total payable by Tenant to Landlord	$1,458.53

Order

No suppression Orders are sought.
Marcel John Dauphin and Louise Catherine Mark as Trustees of Dauphin Family Trust must pay Lisa Castles $461.47 immediately, calculated in the table below:

Reasons

Both parties attended the hearing which was held by teleconference. Background
The tenancy began on 26 April 2019.
The landlords decided to sell the property. They travelled to Napier to speak with the tenant about those plans. No written notice of their intention to sell the property was given.
Following that conversation with the landlords, the tenant began looking for alternative accommodation. A new tenancy was found and the tenant gave 28 days’ notice of termination. The tenancy ended on 27 May 2024.
The landlords were out of New Zealand when the tenancy ended and arranged for a final inspection to be undertaken by an independent inspector, Betta Property Compliance. That business had undertaken a Healthy Homes assessment of the premises in April 2021. The end of tenancy inspection report is dated 27 May 2024 (“the Inspection report”)
Based on that inspection report, the landlords took the view that the tenant had breached her obligations under the tenancy agreement and on 23 June 2024 the landlords filed their application seeking compensation for: a. Broken fly screens - $160.00 b. repair of broken window glass in the shower room - $282.50 c. a mat to partially cover a hole in the hobby room - $19.08 d. six hours cleaning bye Jennifer Dauphin - $240.00 e. four hours cleaning by Brianna Dauphin - $160.00 f. Fuel costs for Jennifer Dauphin (ex Wellington) - $112.94 g. Fuel costs Brianna Dauphin (ex Auckland) - $200.13 h. cleaning products - $16.95 i. repair and painting and charges for the hobby room - $892.52 j. carpet cleaning costs - $240.00
On 31 July 2024 the tenant filed her cross application. In the application the tenant seeks compensation and/or exemplary damages for the landlords’: a. failure to lodge the bond b. failure to appoint an agent c. failure to give notice that the property was to be sold d. breach of her right quiet enjoyment/ privacy e. not allowing her to participate in the final inspection f. failure to compensate for tree removal costs g. failure to repair a ranch slider
Each of the parties’ claims is addressed separately below Landlords’ Claims

Did the tenant comply with her obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
The summary to the inspection report says: “Property is generally in good condition. It needs a good clean on the interior. There are some maintenance issues that need to be addressed, such as the exterior paint on the north western side is cracking and peeling. This will need to be addressed promptly to prevent deterioration of the weatherboard cladding. The exterior laundry door needs work as it cannot be easily open and requires a private bar to close it again. There are significant damage to the walls and the sleep out and the carpet is in extremely poor condition also in the sleepout...”
The assessment of that the premises, “needs a good clean on the interior” is supported by photographs included in the inspection report.
The evidence provided by the landlord satisfies me on balance that in some respects the tenant breached her obligation to leave the premises in a reasonably clean and tidy condition.
The tenant says that she ought to have been able to participate in that final inspection and to have been given the opportunity to address what the landlord says were the shortcomings in the condition of the premises. She says that had she been given that opportunity she would have taken it and done more cleaning.
Section 49 RTA provides that “Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.”
It is also important to note that the tenant’s obligation is to leave the premises in a reasonably clean and tidy condition, not to leave it in a condition ready for marketing and sale.
Those factors need to be taken into account in assessing reasonable compensation for the tenant’s breach.
I am not persuaded that the landlords’ decision to have family travel from Auckland and Wellington respectively to undertake cleaning work was a necessary consequence of the tenant’s breach. I also need to take into account the landlord’s evidence that no cleaning of the premises was undertaken before the property was marketed for sale, over and above the cleaning that the tenant is being asked to pay for.
Unlike the hourly rate charged by commercial cleaning contractors, landlords undertaking work themselves should be compensated at a rate that does not include a profit margin.
Bearing those factors in mind, having regard to the evidence given at the hearing and contained in the inspection report, I assess 8 hours work at $30.00 per hour as reasonable compensation for the tenant’s breach of her obligation to leave the premises reasonably clean and tidy.
The landlords are entitled to be reimbursed the cost for the cleaning products used, as proved by the receipts provided.
The need for the carpet to be commercially cleaned is proved by the inspection report and the cost is proved by the invoice provided

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 RTA.
The tenant says that the hole in the fly screen was made accidentally as she was rushing to close a window, for fear of it being damaged in a strong wind. There is no suggestion that the fly screen was damaged intentionally but nevertheless if it was damage to the landlords’ property that occurred during the tenancy and was not through some external event outside the tenant’s control. The landlord is entitled to compensation for the repair cost. The replacement cost is proved by the invoice provided by the landlord.
The inspection report shows a cracked window pane in the shower room. The tenant says that she was unaware of the damage and did not see it when she was undertaking a thorough cleaning of the premises on the last day of the tenancy. I have no reason to disbelieve the tenant’s evidence about that.
As noted above, in relation to claims for damage, the landlord must provide evidence that proves, on balance, that damage occurred during the tenancy and was more than fair wear and tear. The inspection report, undertaken at the end with the tenancy shows the cracked window. That damage is not noted in the pre tenancy inspection report and I consider it more likely than not that the damage occurred during the tenancy. In does not appear to be from wear and tear.
That being so, the obligation then falls to the tenant to provide evidence to show that the damage is not her responsibility. In the absence of such evidence, I find it to be damage the tenant should compensate the landlord for.
The repair cost is proved by the invoice provider by the landlords.
The tenant acknowledges that damage was done to the exterior room (“hobby room”), during the tenancy. The tenant says that she patched and plastered the holes in the wall, which is confirmed by the photographs provided. There was a need however to have the hobby room walls repainted.
The existing paint was old and I must consider whether in having the room repainted the landlord benefitted from an improvement value that should be taken into account. Given the nature of the room, which is an outside room not well suited for habitation, I accept the landlord’s submission that any increase in value to the property from the hobby room having been a newly repainted would be minimal.
It is nevertheless appropriate to make a modest allowance for the improvement in the condition of that room from it being repainted at the tenant’s cost. The compensation is therefore a little less than the landlord’s cost, as proved by the invoice provided.
The landlords are entitled to compensation for the modest cost of a rug bought to cover carpet damage in the hobby room. Tenant’s claims Failure to Lodge Bond
The landlords had appointed a property manager, Mr Hughes as their agent to establish a tenancy at the premises.
The tenant had previously had a tenancy managed by Mr Hughes, which was coming to an end. She says that Mr Hughes suggested she move into this property.
The tenant’s evidence is that as an incentive for her to do so, instead of her bond being transferred from the previous tenancy to this tenancy, Mr Hughes said he would arrange for the bond from the previous tenancy to be released to her, to help with moving costs, and that he would arrange for the bond for this tenancy to be paid for her.
The tenant says that she agreed to take this tenancy on the basis of that promise.
No bond for this tenancy has ever been lodged.
That seems an unlikely arrangement. However, the tenant’s evidence is corroborated by Mr Hughes having provided to the landlord for signature a bond lodgement form, acknowledging payment by the tenant of a bond of $1,920.00. A copy of that form, signed by both the landlord and the tenant, has been provided in evidence.
If, as the tenant says, she only entered into this tenancy on the basis that her previous bond would be paid to her to assist with moving costs and that the bond for this tenancy would be paid by Mr Hughes, in his capacity as agent for the landlord, then the principle of estoppel needs to be considered.
Application of that principle would mean, if the tenant can show that: a. Mr Hughes, as the landlords’ agent, created an expectation that the bond would be paid for her; and b. the tenant reasonably relied on that expectation to her detriment; and c. it would be unfair for the landlord to from that expectation; the tenant is entitled to be treated as if that expectation had been fulfilled.
Although, as noted, the circumstances are unusual, the evidence does persuade me on balance, that Mr Hughes did create that expectation which the tenant relied on in entering into the this tenancy, leaving her now without a bond to be applied toward her end of tenancy obligations or transferred to a new tenancy. In those circumstances I find it would be unjust to determine these claims on the basis that there is no bond held, to the tenants credit.
The claims are therefore assessed on the on the basis that the tenant paid a bond of $1,920.00.
The bond was not lodged with the Bond Centre as the tenant was told it would be. For reasons outlined to the parties at the hearing, I find it would be unjust in the circumstances to award exemplary damages against the landlord for their agent’s failure to lodge with the Bond Centre, a bond that the tenant did not in fact pay. The landlords already incur a loss in the amount of the bond. The claim for exemplary damages is declined. Appointing an agent while overseas
Section 16A RTA requires that, “A landlord who is out of New Zealand for longer than 21 consecutive days must ensure that the landlord has an agent in New Zealand.”
The landlords were absent from New Zealand for 12 months. Before leaving they e-mailed the tenant on 12 March 2023: “As we have discussed with you Lisa, with us heading away, nothing much will change from your point of view hopefully :-)). If there are any issues at all, please email me as you do now. If the matter is urgent, at any time of the day or night, 24/7 please call me - or Marcel - and I will update all of you with our new numbers when we have them. I will be at the other end of the phone whenever you need me - HOWEVER, if for some reason, if the matter is urgent and you can't get hold of me - or Marcel in the second instance - we have a third back up - our friend Richard, who lives in Napier. This is an email is to make sure you all have each other's contact details.”
I accept that the tenant may have felt reluctant to her contact the landlords’ New Zealand agent given the content of that notification. However, I do not find it proved that the landlord had breached their obligation to provide an agency contract for the tenant in New Zealand, while they were out of the country. Giving notice of intended sale
Section 47 RTA requires that, “If, at any time after entering into a tenancy agreement, the landlord puts the premises on the market for the purposes of sale or other disposition, the landlord must, as soon as practicable, give written notice of that fact to the tenant.”
Breaching that obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 47(3) and Schedule 1A Residential Tenancies Act 1986.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The landlords made a point of visiting the tenant to let her know about their plans to sell the property. They did not provide written notice to the tenant as required by s. 47.
In the circumstances of this tenancy and the parties’ relationship, my view is that the landlords having made a point of having a conversation with the tenant about their plans to sell the premises, is a reasonable excuse not to have followed up with a formal written notice.
Even if that were not the case, I would not have considered it just to make an award of exemplary damages against the landlord for failing to also give the tenant written notice of their intention to sell the premises. The landlords, reasonably, considered it respectful to the tenant to have a discussion with her about their plans rather than simply writing to her. The tenant immediately took steps to a look for other accommodation so she was not disadvantaged by the landlord not having given notice in writing (for instance as she might have been had she taken no steps to look for another home while waiting for written notice to be given). For those reasons, this claim is declined. Inspections
The tenant raises concerns that inspections during the tenancy were sometimes carried out through Facetime and that the final inspection occurred without her being present.
While there are good reasons for inspections being carried out in the presence of both the landlord and tenant, I find had no breach of the agreement or the RTA proved in the way these inspections were conducted. Breach of Right to quiet enjoyment
The tenant says that she was put under pressure about arrangements for marketing photographs to be taken and viewings of the property for a potential sale.
The evidence is that the parties discussed arrangements for photographs to be taken and for viewings. After the tenant found new accommodation, she was busy in the process of packing and had two family members suffering from COVID so cancelled some intended appointments. When she felt that the sales agent was being quite “pushy” about arrangements for marketing photos to be taken, the tenant contacted the landlords who in turn contacted their sales agent and the decision was made to defer those steps towards selling the property until the tenancy had ended.
I fully accept that the tenant was in a pressured and difficult situation, having to find alternative accommodation because her home was being sold, packing and moving and having to deal with unwell family. I accept too that the sales agent may have been pushing to be able to do her job and take the steps necessary to have the property put on the market.
Against that, the RTA makes it clear that the landlord is entitled to reasonable access to the premises for marketing and sale purposes (see s.48(3) and (3A)).
Balancing the parties’ respective interests, the evidence does not persuade me that the landlords breached their obligation under s.38 RTA not to, “.....cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.”
That claim is declined. Repair and Maintenance Obligations
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
The tenant says that the landlord failed to meet that obligation in respect of: a. the ranch slider doors which the attendant says let in unreasonable draughts; b. leaks into the premises; c. removal of a tree.
It is not disputed that the Healthy Homes assessment carried out by Betta Homes Compliance reported that the premises complied with the Healthy Homes draught stopping standard.
That being so, there would need to be clear contrary evidence to support a finding the landlords breached their obligation to maintain the premises in a reasonable state of repair in that regard.
The tenant says that there were visible and cold draughts coming through the ranch slider but there is no corroborating evidence, sufficient to override the expert assessment of the inspector and I do not find that claim proved.
The tenant has given evidence of 2 occasions when there was leaking at the property. The first involved a significant flooding event following which an insurance claim was made by the landlords. The repair cost was assessed at $10,000.00 and occurred over some months
The landlords acknowledge that because they were overseas, with the tenant’s acquiescence at least, the tenant often dealt directly with the tradespeople about arrangements for them to visit and carry out repairs etc.
While no claim was made at the time by the tenant for compensation for the effect of those interruptions, I do find it more likely than not that these works did diminish the tenants use and enjoyment of the premises while they were being carried out. The work was being carried out for the benefit of the landlords as the property owner. In those circumstances I find the tenant’s claim for modest compensation of $200.00 proved and reasonable.
A second more minor leak occurred. The tenant’s evidence is that when inspected, the roofing contractor said that the cause was the accumulation in the gutters and down pipes of leaves from a tree on the property and advised that the tree be removed. The tenant says that she approached the landlord about removing the tree. The landlords agreed and the tree was removed at the tenant’s cost. The tenant says that she should be compensated for that cost.
The landlords’ position is that they were advised that only some of the branches overhanging the roof should be removed, which the tenants did before asking if they could take down the whole tree, which was not necessary.
On balance, I find it proves that the work undertaken by the tenants to remove the tree saved the landlord the cost (whether a third party expense or time and effort to the landlords) of removing at least some of the branches to avoid further blocking off the gutters and the risk of further water damage. A modest compensatory award to the tenant for that saving is reasonable.
Because both parties have had claims awarded I make no Order regarding the filing fee

Tenancy Tribunal case 4916593 — Property damage at 5 Elliott Street, Taradale, Napier 4112

At a glance

Tenancy Tribunal case 4916593 — Property damage at 5 Elliott Street, Taradale, Napier 4112

At a glance

Award balance

Claims & awards

Order

Reasons

Did the tenant comply with her obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the tenant comply with her obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions