Published tribunal order
Tenancy Tribunal case 5102191 — Rent arrears at Unit/Flat 10, 190 Ulster Street, Whitiora, Hamilton 3200
Decided 21 Mar 2025 · Published 21 Mar 2025 · Application 5102191
Landlord favoured
- Rent arrears
- Smoke alarms
Order
- Yue Liu and Baosheng Miao must pay Linze Holdings Limited $3,207.00 immediately, calculated as shown in table below.
Reasons
- The tenancy commenced on 28 June 2024 and was for a fixed term ending on 03 July 2025. On 08 August 2024, the tenant informed the landlord that they needed to return to their home country and wished to terminate the tenancy. On 30 August 2024, the landlord acknowledged the tenant’s message, and advised that as the tenancy was for a fixed term they could not end the agreement with notice and that the tenant would remain liable for rent until a new tenancy was entered into.
- On 05 September 2024, the landlord sought release of the bond to cover accrued rent arrears. On 05 December 2024, the landlord entered a new tenancy agreement. On 10 December 2024, the landlord filed a claim, which was subsequently set down for an audio-visual hearing on 18 March 2025. Details of the hearing date and time, and a link were sent to both parties. Mr Lin joined the hearing for the landlord. There was no appearance by the tenant.
- The landlord’s claims are that the tenant: i. Is liable for rent to the start of the new tenancy ($6,120.00 less the bond of $1,440.00 already refunded), ii. Failed to remove all rubbish ($300.00), iii. Is liable for a break lease fee ($360.00), iv. Responsible for damage ($650.00), v. Interfered with the smoke alarms (exemplary damages $300.00).
- In brackets next to the claims is the compensation sought.
- The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”). Rent
- The rent summary produced shows that the tenant had paid up to 08 August 2024. The landlord entered in a new agreement commencing 05 December 2024. The Tribunal has been shown a copy of the new agreement. The landlord is seeking rent for a five-month period from 09 August 2024 to 05 December 2024, totalling $6,120.00. Law
- A party who breaches the terms of the agreement is liable for any loss naturally arising from the breach that is contemplated by the parties. However, under section 49 of the Act, a party suffering a breach must take all reasonable steps to mitigate their loss.
- A tenant who abandons a fixed term tenancy is liable for rent until the end of the term, or the landlord entering a new agreement. See section 61(3)(b) of the Act. There is no obligation under section 49 for the landlord to take any steps to mitigate their loss. This was confirmed in Nest Residential Rentals and Landlord Services Limited v Lisa Folland [2020] NZDC 628.
- However, in this case the tenant has not “abandoned” the property. While the tenant has breached the terms of the agreement, and is liable for rent, the landlord had a duty to take reasonable steps to mitigate their loss.
- The issue in this case is whether the landlord has taken reasonable steps and whether the amount claimed is reasonable.
- Whether a landlord has taken reasonable steps to mitigate is a question of fact dependent upon the particular circumstances of each case.
- The landlord attributes the delay in re letting the property to low demand for properties of its type. The property is a two-bedroom unit in a ten-unit block. The landlord states that, at the relevant time they had three other vacant units in the same block for rent. The landlord stated that they advertised the property on Trade Me and has shown the Tribunal a copy of the advertisement dated 05 October 2024. However, there is no evidence as to when the advertisement was placed or how long it was active. Decision
- The tenant has breached the agreement, and the landlord is entitled to be compensated for their loss. Based on the evidence provided as to the steps taken to mitigate that loss, I consider an award of twelve weeks rent is reasonable. Accordingly, I award the landlord $4,320.00. Break lease fee.
- The landlord is claiming a break lease fee of $360.00. Landlords are entitled to seek reasonable costs associated with reletting the property. Typically, a landlord would provide details of these costs to the tenant before making a claim. This does not appear to have occurred. On 23 December 2024, the Tribunal requested the landlord provide a statement of costs of re-tenanting. The landlord did not respond.
- In this case the landlord has provided the advertisement only and stated they have an account with Trade Me. There is no other evidence provided regarding the costs incurred. There is insufficient evidence, and the claim is dismissed. Rubbish removal.
- The landlord is claiming $300.00 to remove rubbish belonging to the tenant. At the end of the tenancy the tenant must remove all rubbish. See section 40(1)(e)(ii) of the Act. No evidence has been provided to support the claim, and it is dismissed. Damage
- The landlord states that on or about 27 July 2024, they were informed by the occupants of the unit below the tenant’s that there was water leaking from the ceiling, running down the wall, and onto the carpet.
- The landlord investigated the matter and determined the source of the leak was an incorrectly attached water hose from the tenant’s washing machine. The landlord dried the carpet in the unit below. While doing so, the occupants of the affected unit complained about the inconvenience and were invited to seek a rent reduction by the landlord but did not do so.
- The landlord states that the damage was more than fair wear and tear and resulted from the tenant’s carelessness in connecting the washing machine. The landlord is claiming $650.00, which is their insurance excess.
- To succeed with a claim for damage the landlord must prove that damage occurred during the tenancy and is more than fair wear and tear.
- The issue is whether the Tribunal can be satisfied that damage has occurred. The photographs produced do not show any damage to the walls or carpet. Instead, the carpet appears to have a wet patch which was subsequently dried. There are no quotes or estimates provided.
- On the evidence provided I am not satisfied that actual damage has occurred. However, I acknowledge that the landlord has spent time drying the carpet and, accordingly, award $150.00 for their effort. Smoke alarms.
- The pre tenancy inspection photographs produced by the landlord show a smoke alarm in the lounge near the entrance to both bedrooms.
- The landlord has produced a photograph they state was taken after the tenant vacated, showing what appears to be cling film or thin plastic placed over the alarm, which they state would have interfered with its operation. Law
- A tenant must not cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004. See section 40(2)(ab) of the Act. The definition of “means of escape” includes “all active and passive protection features required to warn people of fire...,” which covers smoke alarms.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 40(3A)(b) and Schedule 1A of the Act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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) of the Act. Decision
- On the evidence, I am satisfied that the tenant interfered with the smoke alarm.
- Smoke alarms protect the occupants of the property, and neighbouring properties, from serious injury or death and prevent potential property damage by fire. It is clearly in the interests of the landlord and tenant, as well as the public, that landlord’s and tenant’s meet their respective obligations. Removing or interfering with smoke alarms may also void the landlord’s insurance, potentially making the tenant liable for the full cost of any fire related damage. Considering these factors, I award the landlord $150.00 exemplary damages. Costs
- Because Linze Holdings Limited has partly succeeded with the claim I have reimbursed the filing fee. Name suppression.
- The landlord does not seek name suppression and no orders are made.