What was the outcome of Tenancy Tribunal case 5065288?

The tribunal order states: Emma Kelly to pay Lime Real Estate Limited As Agent For Gh And Me Howden

How much money was awarded in case 5065288?

Property Damage: $625.00 awarded to landlord

What type of tenancy dispute was case 5065288?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5065288?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11241708-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5065288?

The tribunal order states: Emma Kelly to pay Lime Real Estate Limited As Agent For Gh And Me Howden

How much money was awarded in case 5065288?

Property Damage: $625.00 awarded to landlord

What type of tenancy dispute was case 5065288?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5065288?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11241708-Tenancy_Tribunal_Order.pdf.

38 Cleland Crescent, Kaiapoi, Kaiapoi 7630 Tenancy Tribunal Case 5065288 — Property damage

Claims and awards in Tenancy Tribunal application 5065288 — net $625.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Compensation for Curtain damage	$625.00	Compensation for Curtain damage
Net award	$625.00
Bond	$2,080.00
Total payable by Tenant to Landlord	$625.00

Order

Emma Kelly to pay Lime Real Estate Limited As Agent For Gh And Me Howden Trust $625.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,080.00 (6409996-007) immediately apportioned as follows: Lime Real Estate Limited As Agent For Gh And Me Howden Trust: $625.00 Emma Kelly: $1,455.00

Reasons

Both parties attended the hearing by video conference.
The landlord has applied for compensation, payment of the bond, and reimbursement of the filing fee following the end of the tenancy.
The relevant law that applies is found in the Residential Tenancies Act 1986 (RTA).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this 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.

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.
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.
The following damage was caused during the tenancy: A curtain was damaged. Damage to curtain
Both parties have helpfully provided clear written statements outlining their positions in relation to the damage which they confirmed at the hearing.
The landlord says at the end of the tenancy they discovered a curtain in the open plan living and dining room was damaged by way of a tear/rip at the back and an area that had been pulled at the front.
The landlord says the damage appears to have been caused by the tenant’s pet as there were dog hairs on the curtain. The landlord referred me to the pre inspection report which confirms the curtains were undamaged at the commencement of the tenancy.
The tenant says she did not cause the damage to the curtain, she does not know how the damage was caused and she had not noticed it during the tenancy.
The tenant raised that there were no photographs of the damaged area of curtain in the pre inspection report and raised that the photographs provided with the application were taken during the subsequent tenancy. I took from that that the tenant was implying that the subsequent tenants may have caused the damage. In response to this, the landlord provided e-mail correspondence with the tenant about the damage, with photographs attached. The email was sent the day before the subsequent tenancy commenced.
I am satisfied that the damage occurred during the tenancy.
There is no suggestion that the tenant’s intentionally caused the damage.
I consider it likely the damage was caused by the tenant’s dog or a lack of care when using the curtain. Accordingly, I treat the damage as careless damage.
The amount claimed to replace the curtain was $1,250.00 which is based on a quote provided by the landlord.
I must take into account 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. 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 IR265 General depreciation rates guide states a curtains estimated useful life span is 8 years. The curtain was four years old and therefore halfway through its estimated useful lifespan.
I note that the curtain in this case was custom made and I was told the landlord is unable to have the curtain remade with the same material to match the other curtains. However, I also note that the damaged curtain appears to be still usable, and it may be that only the back of the curtain needs replacement.
In taking into to account betterment and depreciation I make an order for 50% of the claim being $625.00 to compensate the landlord for the damage. The landlord’s insurance excess is $650.00 and one weeks rent was $630.00. The amount ordered is below the statutory maximum.
The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The amount ordered is proved. Filing fee
The landlord did not seek the filing fee. Suppression
On my enquiry, both parties confirmed that name suppression was not sought.

Claims and awards in Tenancy Tribunal application 5065288 — net $625.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Compensation for Curtain damage	$625.00	Compensation for Curtain damage
Net award	$625.00
Bond	$2,080.00
Total payable by Tenant to Landlord	$625.00

Order

Emma Kelly to pay Lime Real Estate Limited As Agent For Gh And Me Howden Trust $625.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,080.00 (6409996-007) immediately apportioned as follows: Lime Real Estate Limited As Agent For Gh And Me Howden Trust: $625.00 Emma Kelly: $1,455.00

Reasons

Both parties attended the hearing by video conference.
The landlord has applied for compensation, payment of the bond, and reimbursement of the filing fee following the end of the tenancy.
The relevant law that applies is found in the Residential Tenancies Act 1986 (RTA).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this 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.

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.
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.
The following damage was caused during the tenancy: A curtain was damaged. Damage to curtain
Both parties have helpfully provided clear written statements outlining their positions in relation to the damage which they confirmed at the hearing.
The landlord says at the end of the tenancy they discovered a curtain in the open plan living and dining room was damaged by way of a tear/rip at the back and an area that had been pulled at the front.
The landlord says the damage appears to have been caused by the tenant’s pet as there were dog hairs on the curtain. The landlord referred me to the pre inspection report which confirms the curtains were undamaged at the commencement of the tenancy.
The tenant says she did not cause the damage to the curtain, she does not know how the damage was caused and she had not noticed it during the tenancy.
The tenant raised that there were no photographs of the damaged area of curtain in the pre inspection report and raised that the photographs provided with the application were taken during the subsequent tenancy. I took from that that the tenant was implying that the subsequent tenants may have caused the damage. In response to this, the landlord provided e-mail correspondence with the tenant about the damage, with photographs attached. The email was sent the day before the subsequent tenancy commenced.
I am satisfied that the damage occurred during the tenancy.
There is no suggestion that the tenant’s intentionally caused the damage.
I consider it likely the damage was caused by the tenant’s dog or a lack of care when using the curtain. Accordingly, I treat the damage as careless damage.
The amount claimed to replace the curtain was $1,250.00 which is based on a quote provided by the landlord.
I must take into account 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. 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 IR265 General depreciation rates guide states a curtains estimated useful life span is 8 years. The curtain was four years old and therefore halfway through its estimated useful lifespan.
I note that the curtain in this case was custom made and I was told the landlord is unable to have the curtain remade with the same material to match the other curtains. However, I also note that the damaged curtain appears to be still usable, and it may be that only the back of the curtain needs replacement.
In taking into to account betterment and depreciation I make an order for 50% of the claim being $625.00 to compensate the landlord for the damage. The landlord’s insurance excess is $650.00 and one weeks rent was $630.00. The amount ordered is below the statutory maximum.
The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The amount ordered is proved. Filing fee
The landlord did not seek the filing fee. Suppression
On my enquiry, both parties confirmed that name suppression was not sought.

Tenancy Tribunal case 5065288 — Property damage at 38 Cleland Crescent, Kaiapoi, Kaiapoi 7630

At a glance

Tenancy Tribunal case 5065288 — Property damage at 38 Cleland Crescent, Kaiapoi, Kaiapoi 7630

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