What was the outcome of Tenancy Tribunal case 4936158?

The tribunal order states: This Order incorporates and replaces the Tribunal’s Order in application 4842695

How much money was awarded in case 4936158?

Cleaning: $860.20 awarded to landlord; Compensation: Fail To Mitigate: $1,500.00 awarded to tenant; Filing Fee: $27.00 awarded to landlord; Previous Order Application 4842695 D…: $3,919.33 awarded to landlord; Property Damage: $862.50 awarded to landlord; Property Damage: $747.50 awarded to landlord; Remove Addition/ Alteration: $1,725.00 awarded to landlord; Rent Arrears: $758.57 awarded to landlord; Replace Laundry Tub: $500.00 awarded to landlord; Replace Vanity: $400.00 awarded to landlord; Rubbish Removal: $2,415.00 awarded to landlord

What type of tenancy dispute was case 4936158?

The primary dispute was Property damage. Related themes: Cleanliness, Rent arrears.

Where can I read the official tribunal order for case 4936158?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11192016-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4936158?

The tribunal order states: This Order incorporates and replaces the Tribunal’s Order in application 4842695

How much money was awarded in case 4936158?

Cleaning: $860.20 awarded to landlord; Compensation: Fail To Mitigate: $1,500.00 awarded to tenant; Filing Fee: $27.00 awarded to landlord; Previous Order Application 4842695 D…: $3,919.33 awarded to landlord; Property Damage: $862.50 awarded to landlord; Property Damage: $747.50 awarded to landlord; Remove Addition/ Alteration: $1,725.00 awarded to landlord; Rent Arrears: $758.57 awarded to landlord; Replace Laundry Tub: $500.00 awarded to landlord; Replace Vanity: $400.00 awarded to landlord; Rubbish Removal: $2,415.00 awarded to landlord

What type of tenancy dispute was case 4936158?

The primary dispute was Property damage. Related themes: Cleanliness, Rent arrears.

Where can I read the official tribunal order for case 4936158?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11192016-Tenancy_Tribunal_Order.pdf.

55 Tennessee Avenue, Mangere East, Auckland 2024 Tenancy Tribunal Case 4936158 — Property damage

Reasons

Claims and awards in Tenancy Tribunal application 4936158 — net $10,715.10 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears – 6 May 2024 to 15 May 2024	$758.57		Rent arrears – 6 May 2024 to 15 May 2024
Previous order application 4842695 dated 06/05/2024	$3,919.33		Previous order application 4842695 dated 06/05/2024
Rubbish removal	$2,415.00		Rubbish removal
Remove addition/ alteration	$1,725.00		Remove addition/ alteration
Cleaning	$860.20		Cleaning
Wall repairs	$862.50		Wall repairs
Replace vanity	$400.00		Replace vanity
Replace laundry tub	$500.00		Replace laundry tub
Basement repairs and replace insulation	$747.50		Basement repairs and replace insulation
Filing fee reimbursement	$27.00		Filing fee reimbursement
Compensation: fail to mitigate		$1,500.00	fail to mitigate
Total award	$12,215.10	$1,500.00
Net award	$10,715.10
Total payable by Tenant to Landlord	$10,715.10

The landlord attended the hearing. The tenants did not attend.

The landlord has applied for rent arrears, compensation and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

The tenancy was ended on 6 May 2024 by Order of the Tribunal of the same date (application 4842695).

That Order calculated the arrears owed to 6 May 2024, which are now incorporated into this Order. The tenants remained in occupation until 15 May 2024 and are liable for rent to that date (See s.60(1)).

The May Order also included the overdue water rates and that application is withdrawn by the landlord.

Did the tenant comply with their 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.

End of tenancy photographs provided by the landlord show that the premises were left in a very bad state by the tenants. Very large quantities of rubbish were throughout the property and the premises required extensive cleaning.

The sums paid by the landlord to have that work done are proved by the invoices provided, which the landlord has paid. The amounts paid, especially for rubbish removal are very high but I accept that simply reflects the state of the property at the end of the tenancy.

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.

In breach of their obligations under s.42(1), the tenants constructed an addition/ alteration in the form of a lean-to type structure.

The landlord had the structure removed and the cost of its removal is proved by the invoice provided and paid by the landlord.

The photographs also show that the bathroom vanity and laundry tub were damaged and needed to be replaced.

There were several holes in walls that needed repair, replacement of insulation and repainting.

The landlord has provided entry inspection photographs which satisfy me that the damage was more likely than not to have been caused during the tenancy and is more than fair wear and tear.

The landlord should be returned to the position they would have been in had the tenants not breached their obligations and should not be better or worse off.

The property manager is unable to provide clear evidence about the age of the bathroom vanity and laundry tub that were replaced, but they appear to have been in good condition at the start of this 4-year tenancy. Moderate allowance for depreciation is made accordingly. Mitigation of Loss

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.”

The recent decision of the District Court in Huang v Ashworth 1 confirms that the principle of mitigation applies to recovery of rent arrears.

That decision cites British Westinghouse Electric and Manufacturing Co v Underground Electric Railway Co of London 2 in describing the principle applying to mitigation of loss as being: “[T]he law does not allow [a claimant] to recover damages to compensate him for his loss which would not have been suffered if he had taken reasonable steps to mitigate his loss. Whether a claimant has failed to take reasonable steps to mitigate as a question effect depending on the particular circumstances of each case.

The primary responsibility for the state of the premises and construction the unconsented addition, lies with the tenants.

There are however steps available to the landlord under the RTA that would have allowed earlier intervention and might have encouraged the tenants to remedy their breaches by removing the structure themselves and/ or taking steps to 1 [2024] NZDC 15726 2 [1912] AC 673 address the accumulation of rubbish on the property. Had the tenants done so, it would have avoided or reduced the costs incurred by the landlord in engaging tradespeople to do the work, which the landlord is now seeking to recover from the tenants.

The property manager says that there were difficulties conducting regular inspections of the premises because of the tenants’ unavailability and concerns about dogs on the property. She also says that the state of the property only quite recently became as bad as it was at the end of the tenancy. She says the focus was on working with Ms Nau, who was the primary occupant for the latter part of the tenancy and who had obligations to children and unwell relatives, to manage the accumulating rent arrears.

While I accept that may have been the case, s.49 creates a positive obligation on the landlord to take reasonable steps to mitigate the loss arising from the tenants’ breach.

In these circumstances it would have been reasonable for the landlord to issue notices to remedy under s.56, making it clear that the tenants were in breach of their obligations to keep the premises in reasonably clean and tidy condition and requiring that they remove the unconsented structure. The tenants being made aware that their tenancy was at risk if they didn’t remedy those breaches, would have been a powerful incentive, which is the intent of those provisions.

No such steps were taken and I find the landlord breached its obligations under s.49.

There is no certainty about what would have happened had the landlord taken those reasonable steps. In my view though there is a distinct possibility that, in terms of the British Westinghouse principles, the landlord’s claim includes recovery of “.....damages to compensate him for his loss which would not have been suffered if he had taken reasonable steps to mitigate his loss.’

Allowance for that breach of the landlord’s obligations is appropriate in the Order.

Because Gralin Property Management (Auckland Central) Limited has substantially succeeded with the claim I must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4936158 — net $10,715.10 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears – 6 May 2024 to 15 May 2024	$758.57		Rent arrears – 6 May 2024 to 15 May 2024
Previous order application 4842695 dated 06/05/2024	$3,919.33		Previous order application 4842695 dated 06/05/2024
Rubbish removal	$2,415.00		Rubbish removal
Remove addition/ alteration	$1,725.00		Remove addition/ alteration
Cleaning	$860.20		Cleaning
Wall repairs	$862.50		Wall repairs
Replace vanity	$400.00		Replace vanity
Replace laundry tub	$500.00		Replace laundry tub
Basement repairs and replace insulation	$747.50		Basement repairs and replace insulation
Filing fee reimbursement	$27.00		Filing fee reimbursement
Compensation: fail to mitigate		$1,500.00	fail to mitigate
Total award	$12,215.10	$1,500.00
Net award	$10,715.10
Total payable by Tenant to Landlord	$10,715.10

Order

This Order incorporates and replaces the Tribunal’s Order in application 4842695 dated 6 May 2024.
Susana Nau and Pahulu Fakayale Nau must pay Gralin Property Management (Auckland Central) Limited $10,715.10 immediately, calculated as shown in the table below.

Reasons

The landlord attended the hearing. The tenants did not attend.
The landlord has applied for rent arrears, compensation and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

The tenancy was ended on 6 May 2024 by Order of the Tribunal of the same date (application 4842695).
That Order calculated the arrears owed to 6 May 2024, which are now incorporated into this Order. The tenants remained in occupation until 15 May 2024 and are liable for rent to that date (See s.60(1)).
The May Order also included the overdue water rates and that application is withdrawn by the landlord.

Did the tenant comply with their 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.
End of tenancy photographs provided by the landlord show that the premises were left in a very bad state by the tenants. Very large quantities of rubbish were throughout the property and the premises required extensive cleaning.
The sums paid by the landlord to have that work done are proved by the invoices provided, which the landlord has paid. The amounts paid, especially for rubbish removal are very high but I accept that simply reflects the state of the property at the end of the tenancy.

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.
In breach of their obligations under s.42(1), the tenants constructed an addition/ alteration in the form of a lean-to type structure.
The landlord had the structure removed and the cost of its removal is proved by the invoice provided and paid by the landlord.
The photographs also show that the bathroom vanity and laundry tub were damaged and needed to be replaced.
There were several holes in walls that needed repair, replacement of insulation and repainting.
The landlord has provided entry inspection photographs which satisfy me that the damage was more likely than not to have been caused during the tenancy and is more than fair wear and tear.
The landlord should be returned to the position they would have been in had the tenants not breached their obligations and should not be better or worse off.
The property manager is unable to provide clear evidence about the age of the bathroom vanity and laundry tub that were replaced, but they appear to have been in good condition at the start of this 4-year tenancy. Moderate allowance for depreciation is made accordingly. Mitigation of Loss
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.”
The recent decision of the District Court in Huang v Ashworth 1 confirms that the principle of mitigation applies to recovery of rent arrears.
That decision cites British Westinghouse Electric and Manufacturing Co v Underground Electric Railway Co of London 2 in describing the principle applying to mitigation of loss as being: “[T]he law does not allow [a claimant] to recover damages to compensate him for his loss which would not have been suffered if he had taken reasonable steps to mitigate his loss. Whether a claimant has failed to take reasonable steps to mitigate as a question effect depending on the particular circumstances of each case.
The primary responsibility for the state of the premises and construction the unconsented addition, lies with the tenants.
There are however steps available to the landlord under the RTA that would have allowed earlier intervention and might have encouraged the tenants to remedy their breaches by removing the structure themselves and/ or taking steps to 1 [2024] NZDC 15726 2 [1912] AC 673 address the accumulation of rubbish on the property. Had the tenants done so, it would have avoided or reduced the costs incurred by the landlord in engaging tradespeople to do the work, which the landlord is now seeking to recover from the tenants.
The property manager says that there were difficulties conducting regular inspections of the premises because of the tenants’ unavailability and concerns about dogs on the property. She also says that the state of the property only quite recently became as bad as it was at the end of the tenancy. She says the focus was on working with Ms Nau, who was the primary occupant for the latter part of the tenancy and who had obligations to children and unwell relatives, to manage the accumulating rent arrears.
While I accept that may have been the case, s.49 creates a positive obligation on the landlord to take reasonable steps to mitigate the loss arising from the tenants’ breach.
In these circumstances it would have been reasonable for the landlord to issue notices to remedy under s.56, making it clear that the tenants were in breach of their obligations to keep the premises in reasonably clean and tidy condition and requiring that they remove the unconsented structure. The tenants being made aware that their tenancy was at risk if they didn’t remedy those breaches, would have been a powerful incentive, which is the intent of those provisions.
No such steps were taken and I find the landlord breached its obligations under s.49.
There is no certainty about what would have happened had the landlord taken those reasonable steps. In my view though there is a distinct possibility that, in terms of the British Westinghouse principles, the landlord’s claim includes recovery of “.....damages to compensate him for his loss which would not have been suffered if he had taken reasonable steps to mitigate his loss.’
Allowance for that breach of the landlord’s obligations is appropriate in the Order.
Because Gralin Property Management (Auckland Central) Limited has substantially succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4936158 — Property damage at 55 Tennessee Avenue, Mangere East, Auckland 2024

At a glance

Tenancy Tribunal case 4936158 — Property damage at 55 Tennessee Avenue, Mangere East, Auckland 2024

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Did the tenant comply with their 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

How much is owed for rent?

Did the tenant comply with their 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