What was the outcome of Tenancy Tribunal case 4939275?

The tribunal order states: Brenda Jane Boulton and John Boulton to pay First National Property

How much money was awarded in case 4939275?

Bailiff - Eviction: $258.00 awarded to landlord; Property Damage: $300.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Painting -Excess: $1,100.00 awarded to landlord

What type of tenancy dispute was case 4939275?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4939275?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10911247-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4939275?

The tribunal order states: Brenda Jane Boulton and John Boulton to pay First National Property

How much money was awarded in case 4939275?

Bailiff - Eviction: $258.00 awarded to landlord; Property Damage: $300.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Painting -Excess: $1,100.00 awarded to landlord

What type of tenancy dispute was case 4939275?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4939275?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10911247-Tribunal_Order.pdf.

70 Lucca Crescent, Rolleston, Rolleston 7615 Tenancy Tribunal Case 4939275 — Property damage

Claims and awards in Tenancy Tribunal application 4939275 — net $1,712.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Painting -Excess	$1,100.00	Repairs: Painting -Excess
Bailiff - Eviction	$258.00	Bailiff - Eviction
Filing fee reimbursement: Application 4941373	$27.00	Application 4941373
Filing fee reimbursement: Application 5015869	$27.00	Application 5015869
Exemplary Damages - Failing to Quit Premises	$300.00	Exemplary Damages - Failing to Quit Premises
Net award	$1,712.00
Bond	$2,120.00
Total payable by Tenant to Landlord	$1,712.00

Order

Brenda Jane Boulton and John Boulton to pay First National Property Management Limited as Agent For Owner $1,712.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,120.00 immediately apportioned as follows: First National Property Management Limited As Agent For Owner: $1,712.00 Brenda Jane Boulton and John Boulton: $408.00
Except as awarded in Order 1 above both parties’ claims for compensation and/or exemplary damages are dismissed.

Reasons

Both parties attended a hearing on 3 October 2024.
The tenant application 4939275 and landlord application 4941373 were lodged in July and included claims in relation to a Notice to Terminate the tenancy. Those aspects of the claim were heard in August. Mr Boulton applied for a rehearing of a decision dated 14 August 2024. The balance of the claims were put on hold until the rehearing was determined.
There was a rehearing hearing on 28 August 2024. The rehearing application was dismissed and directions issued as follows: “3. The parties must provide the Tribunal with a bullet point summary of any residual claims they have within 7 days of the date of this hearing.
If either party intends to produce any additional documents at the next hearing, they must send copies to the Tribunal at least three days before the next hearing.”
The landlord advised the Tribunal that it had no residual claims under application 4941373. The tenants did not respond to the directions.
On 2 October, the Tribunal sent a reminder to the parties to confirm any residual claims and provide any documents before the hearing. The tenants did not respond. Notwithstanding the tenants’ failure to comply with directions, I heard its claims at the hearing on 3 October 2024.
The landlord has submitted a second cross application (5015869) which was also heard on 3 October 2024. The Tenants’ Claims
The tenant has applied for a market rent assessment. Sections 25(1) and (3) Residential Tenancies Act 1986 provide: (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.”
The tenant must prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount”. The term 'substantial' is not defined in the RTA, but it is the opposite of ‘minor’ or ‘insignificant’.
The factors the Tribunal may have regard to are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant”.
The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence has its limitations. Although advertisements usually list the essential features of the property advertised, there is often limited qualitative information available for comparison. Also, advertisements only cover houses currently on the market and do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.
It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. These statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. The statistics include median rent as well as upper and lower quartile.
The landlord gave a 60 day notice of rent increase on 17 April 2024, increasing the rent to $700 per week. Neither party provided me with a copy of the notice. The tenant claimed that the rent was excessive and said that rent of $650.00 per week would be appropriate. Mr Boulton provided evidence from Tenancy Services and referred to the average rent for this area being $630.00 per week.
This property has 4 bedrooms and is 5 years old. It was new at the start of the tenancy. The landlord noted that while the median rent for all properties in Rolleston for the period 1 February to 31 July 2024 was $630.00, the median for 4-bedroom properties is $680.00, with an upper quartile rent of $700.00 per week.
The landlord also provided advertisements for a range of properties. Some, such as a new, furnished property at $850.00 per week were not comparable. Mr Boulton said that only one, was reasonably comparable and that was advertised for rent at $700 per week.
Both parties referred to a similar, but newer property nearby also managed by this property manager which was let for $680 per week. Neither provided any documentary evidence or photographs so that I could compare that property to this one.
Mr Boulton said that he was aware of similar properties being rented for $640.00 per week but did not provide evidence to support that.
Based on the limited evidence presented to me, this property appears to sit within the median band of properties for this area. The market data from tenancy services and the few comparable properties referred to suggest that the market rent would be in the vicinity of $680.00 per week. Rental of $700 per week is not substantially more than the market rent.
The tenants’ application for a market rent assessment is dismissed.
Mr Boulton also claimed $5,000 and exemplary damages for stress caused by the landlord’s conduct. Those claims were not linked to any proven (or alleged) breach of the landlord’s obligations. The claims are dismissed.
Mr Boulton also sought reimbursement for a garden shed left at the property. There is no mention of that in the application and the issue was raised for the first time at the hearing on 3 October 2024. I declined to amend the application and did not hear a claim in relation to the garden shed. See He v Liu [2020] NZDC 24057. The Landlord’s Claims
The Tribunal made an order granting possession to the Landlord on 14 August 2024. The Tribunal also found that the tenancy ended on 16 July 2024, consistent with a Notice to Terminate dated 17 April 2024.
The tenants sought a rehearing in relation to the 14 August decision but did not apply for a stay of the order. The rehearing application was dismissed on 28 August 2024.
The tenants were required to leave the property on 16 July 2024. They left, after the bailiffs became involved, on 8 September 2024.
A tenant must vacate the premises on the termination of the tenancy. See section 40(1)(e)(i) of the Residential Tenancies Act 1986.
Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 40(3A)(a) and Schedule 1A Residential Tenancies Act 1986.
Mr Boulton accepted that the claim for reimbursement of the bailiff’s charges.
The tenants did not vacate on 16 July because they had had challenged the notice to terminate (under application 4939275), and then applied for a rehearing of the order dated 14 August 2024. The timing of the tenants’ actions throughout shows a tendency to delay and leave matters to the last minute. They made the application challenging the Notice to Terminate on 12 July, when had been served on 17 April 2024. They also did not apply for a stay of the 14 August 2024 order, and so should have vacated on that day (at the latest).
I find that the tenants’ actions in not vacating the property were intentional. I have considered Mr Boulton’s evidence regarding the difficulty in finding alternative premises and make a modest award of exemplary damages of $300.00.

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.
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.
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.
The landlord claims that walls and a grass area were damaged during the tenancy. The tenants repainted areas of the walls that had suffered damage or wear and tear. Unfortunately, the painting was not done to a reasonable standard, it is patchy and mismatched. The repair attempt amounts to damage. The landlord has claimed $1,100 being its insurance excess. The actual repair cost was in the vicinity of $2,000.
Mr Boulton submitted that it was unfair that the tenants were being expected to pay for decoration after 5 years of living in the property. The evidence establishes that the landlord is only claiming the reasonable cost of repairing damaged walls. It has not claimed for redecoration or wear and tear. I award $1,100 being the amount claimed.
The landlord also claimed for a repair to the lawn where a dog kennel had been removed. The landlord could not provide photographs of the lawn from the start of the tenancy. Mr Boulton said that, as the property was new when he moved in, it had no established lawn and he has put significant effort into establishing and maintaining the lawn. He acknowledged that there was a dead patch where the kennel had been, but he properly seeded and fertilised it before he left. He said there was no need for the landlord to dig up what he had done and create a garden bed in its place. The landlord has not established this aspect of its claim. The claim is dismissed.
As the landlord succeed with claims under both of its applications, I have awarded reimbursement of both application fees.

Claims and awards in Tenancy Tribunal application 4939275 — net $1,712.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Painting -Excess	$1,100.00	Repairs: Painting -Excess
Bailiff - Eviction	$258.00	Bailiff - Eviction
Filing fee reimbursement: Application 4941373	$27.00	Application 4941373
Filing fee reimbursement: Application 5015869	$27.00	Application 5015869
Exemplary Damages - Failing to Quit Premises	$300.00	Exemplary Damages - Failing to Quit Premises
Net award	$1,712.00
Bond	$2,120.00
Total payable by Tenant to Landlord	$1,712.00

Order

Brenda Jane Boulton and John Boulton to pay First National Property Management Limited as Agent For Owner $1,712.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,120.00 immediately apportioned as follows: First National Property Management Limited As Agent For Owner: $1,712.00 Brenda Jane Boulton and John Boulton: $408.00
Except as awarded in Order 1 above both parties’ claims for compensation and/or exemplary damages are dismissed.

Reasons

Both parties attended a hearing on 3 October 2024.
The tenant application 4939275 and landlord application 4941373 were lodged in July and included claims in relation to a Notice to Terminate the tenancy. Those aspects of the claim were heard in August. Mr Boulton applied for a rehearing of a decision dated 14 August 2024. The balance of the claims were put on hold until the rehearing was determined.
There was a rehearing hearing on 28 August 2024. The rehearing application was dismissed and directions issued as follows: “3. The parties must provide the Tribunal with a bullet point summary of any residual claims they have within 7 days of the date of this hearing.
If either party intends to produce any additional documents at the next hearing, they must send copies to the Tribunal at least three days before the next hearing.”
The landlord advised the Tribunal that it had no residual claims under application 4941373. The tenants did not respond to the directions.
On 2 October, the Tribunal sent a reminder to the parties to confirm any residual claims and provide any documents before the hearing. The tenants did not respond. Notwithstanding the tenants’ failure to comply with directions, I heard its claims at the hearing on 3 October 2024.
The landlord has submitted a second cross application (5015869) which was also heard on 3 October 2024. The Tenants’ Claims
The tenant has applied for a market rent assessment. Sections 25(1) and (3) Residential Tenancies Act 1986 provide: (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.”
The tenant must prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount”. The term 'substantial' is not defined in the RTA, but it is the opposite of ‘minor’ or ‘insignificant’.
The factors the Tribunal may have regard to are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant”.
The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence has its limitations. Although advertisements usually list the essential features of the property advertised, there is often limited qualitative information available for comparison. Also, advertisements only cover houses currently on the market and do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.
It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. These statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. The statistics include median rent as well as upper and lower quartile.
The landlord gave a 60 day notice of rent increase on 17 April 2024, increasing the rent to $700 per week. Neither party provided me with a copy of the notice. The tenant claimed that the rent was excessive and said that rent of $650.00 per week would be appropriate. Mr Boulton provided evidence from Tenancy Services and referred to the average rent for this area being $630.00 per week.
This property has 4 bedrooms and is 5 years old. It was new at the start of the tenancy. The landlord noted that while the median rent for all properties in Rolleston for the period 1 February to 31 July 2024 was $630.00, the median for 4-bedroom properties is $680.00, with an upper quartile rent of $700.00 per week.
The landlord also provided advertisements for a range of properties. Some, such as a new, furnished property at $850.00 per week were not comparable. Mr Boulton said that only one, was reasonably comparable and that was advertised for rent at $700 per week.
Both parties referred to a similar, but newer property nearby also managed by this property manager which was let for $680 per week. Neither provided any documentary evidence or photographs so that I could compare that property to this one.
Mr Boulton said that he was aware of similar properties being rented for $640.00 per week but did not provide evidence to support that.
Based on the limited evidence presented to me, this property appears to sit within the median band of properties for this area. The market data from tenancy services and the few comparable properties referred to suggest that the market rent would be in the vicinity of $680.00 per week. Rental of $700 per week is not substantially more than the market rent.
The tenants’ application for a market rent assessment is dismissed.
Mr Boulton also claimed $5,000 and exemplary damages for stress caused by the landlord’s conduct. Those claims were not linked to any proven (or alleged) breach of the landlord’s obligations. The claims are dismissed.
Mr Boulton also sought reimbursement for a garden shed left at the property. There is no mention of that in the application and the issue was raised for the first time at the hearing on 3 October 2024. I declined to amend the application and did not hear a claim in relation to the garden shed. See He v Liu [2020] NZDC 24057. The Landlord’s Claims
The Tribunal made an order granting possession to the Landlord on 14 August 2024. The Tribunal also found that the tenancy ended on 16 July 2024, consistent with a Notice to Terminate dated 17 April 2024.
The tenants sought a rehearing in relation to the 14 August decision but did not apply for a stay of the order. The rehearing application was dismissed on 28 August 2024.
The tenants were required to leave the property on 16 July 2024. They left, after the bailiffs became involved, on 8 September 2024.
A tenant must vacate the premises on the termination of the tenancy. See section 40(1)(e)(i) of the Residential Tenancies Act 1986.
Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 40(3A)(a) and Schedule 1A Residential Tenancies Act 1986.
Mr Boulton accepted that the claim for reimbursement of the bailiff’s charges.
The tenants did not vacate on 16 July because they had had challenged the notice to terminate (under application 4939275), and then applied for a rehearing of the order dated 14 August 2024. The timing of the tenants’ actions throughout shows a tendency to delay and leave matters to the last minute. They made the application challenging the Notice to Terminate on 12 July, when had been served on 17 April 2024. They also did not apply for a stay of the 14 August 2024 order, and so should have vacated on that day (at the latest).
I find that the tenants’ actions in not vacating the property were intentional. I have considered Mr Boulton’s evidence regarding the difficulty in finding alternative premises and make a modest award of exemplary damages of $300.00.

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.
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.
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.
The landlord claims that walls and a grass area were damaged during the tenancy. The tenants repainted areas of the walls that had suffered damage or wear and tear. Unfortunately, the painting was not done to a reasonable standard, it is patchy and mismatched. The repair attempt amounts to damage. The landlord has claimed $1,100 being its insurance excess. The actual repair cost was in the vicinity of $2,000.
Mr Boulton submitted that it was unfair that the tenants were being expected to pay for decoration after 5 years of living in the property. The evidence establishes that the landlord is only claiming the reasonable cost of repairing damaged walls. It has not claimed for redecoration or wear and tear. I award $1,100 being the amount claimed.
The landlord also claimed for a repair to the lawn where a dog kennel had been removed. The landlord could not provide photographs of the lawn from the start of the tenancy. Mr Boulton said that, as the property was new when he moved in, it had no established lawn and he has put significant effort into establishing and maintaining the lawn. He acknowledged that there was a dead patch where the kennel had been, but he properly seeded and fertilised it before he left. He said there was no need for the landlord to dig up what he had done and create a garden bed in its place. The landlord has not established this aspect of its claim. The claim is dismissed.
As the landlord succeed with claims under both of its applications, I have awarded reimbursement of both application fees.

Tenancy Tribunal case 4939275 — Property damage at 70 Lucca Crescent, Rolleston, Rolleston 7615

At a glance

Tenancy Tribunal case 4939275 — Property damage at 70 Lucca Crescent, Rolleston, Rolleston 7615

At a glance

Award balance

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

Award balance

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