What was the outcome of Tenancy Tribunal case 5120669?

The tribunal order states: No suppression orders apply to the publication of this decision.

How much money was awarded in case 5120669?

Filing Fee: $27.00 awarded to landlord; Property Damage: $193.68 awarded to landlord; Property Damage: $148.87 awarded to landlord; Rent Arrears: $2,098.77 awarded to landlord; Property Damage: $100.00 awarded to landlord

What type of tenancy dispute was case 5120669?

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

Where can I read the official tribunal order for case 5120669?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11480996-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5120669?

The tribunal order states: No suppression orders apply to the publication of this decision.

How much money was awarded in case 5120669?

Filing Fee: $27.00 awarded to landlord; Property Damage: $193.68 awarded to landlord; Property Damage: $148.87 awarded to landlord; Rent Arrears: $2,098.77 awarded to landlord; Property Damage: $100.00 awarded to landlord

What type of tenancy dispute was case 5120669?

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

Where can I read the official tribunal order for case 5120669?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11480996-Tenancy_Tribunal_Order.pdf.

26 Collins Street, Hawera, Hawera 4610 Tenancy Tribunal Case 5120669 — Rent arrears

Claims and awards in Tenancy Tribunal application 5120669 — net $768.32 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears/rent in lieu of notice to 13 December 2024	$2,098.77	Rent arrears/rent in lieu of notice to 13 December 2024
Lock/key replacement	$193.68	Lock/key replacement
Window repairs	$148.87	Window repairs
Repairs: Door damage	$100.00	Repairs: Door damage
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$768.32
Total payable by Tenant to Landlord	$768.32

Claims and awards in Tenancy Tribunal application 5120669 — net $768.32 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears/rent in lieu of notice to 13 December 2024	$2,098.77	Rent arrears/rent in lieu of notice to 13 December 2024
Lock/key replacement	$193.68	Lock/key replacement
Window repairs	$148.87	Window repairs
Repairs: Door damage	$100.00	Repairs: Door damage
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$768.32
Total payable by Tenant to Landlord	$768.32

Order

No suppression orders apply to the publication of this decision.
The landlord has permission to bring a separate application for compensation for damage it claims in relation to the carpet.
The landlord’s claim for exemplary damages for abandonment is dismissed.
The landlord’s claim for compensation for rubbish removal and damage to a splashback, towel rail and walls is dismissed.
Tania Watene must pay Selwyn Metcalfe Limited $768.32 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,800.00 (5724448-004) to Selwyn Metcalfe Limited immediately.

Reasons

Only the landlord attended the hearing.
The tenant did not attend the hearing but I am satisfied that she has been served as she provided an email address for service on her bond form when it was signed on 16 July 2024 and the details relating to the hearing have been served on that address. The hearing therefore proceeded in the tenant’s absence.
Following the end of the tenancy the landlord seeks arrears, compensation and exemplary damages for abandonment. It seeks the bond and reimbursement of the filing fee.

Who is the landlord?

The application is bought by Selwyn Metcalfe Limited (SML). It is a property management business.
Section 77(1) Residential Tenancies Act 1986 (RTA) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants. The Tribunal must first determine whether SML is a landlord to determine whether it may bring this application.
Section 2(1) RTA defines the meaning of landlord as: landlord, in relation to any residential premises that are the subject of a tenancy agreement means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes- ... (e) an agent of the landlord" [emphasis added]
Therefore, while the owner of the property will usually be the grantor of the tenancy a property management business (often described as an agent) may also be a ‘landlord’ where appropriate.
In deciding whether the agent can bring a claim (or can be liable), the Tribunal has to consider principles of agency. There are two relevant sources of agency law: the common law rules of agency and the extended definition of landlord in s 2(1) RTA.
The tenancy agreement describes SML as an agent and an intermediary acting on behalf of the landlord (owner). Therefore, on the face of it, under agency law, they are not a landlord. However, a detailed discussion, surrounding the law of agency in respect of property managers/agents can be found in Tribunal case [2023] NZTT 4601989, 4654572 (see paragraphs 42 to 63). This discussion highlights that the position is more nuanced and requires further consideration.
The application has been made on the basis that SML are the landlord. The bond is held in its name. It collected the rent from the tenant and does the tenancy inspections and generally manages the tenancy. Taking the above factors into account and adopting the reasoning of Adjudicator J P Smith in the above case, I find that SML is a ‘landlord’ and may bring this application.

How much does the tenant owe in rent?

The landlord seeks rent arrears/rent in lieu of notice to 13 December 2024.
The tenancy originally began in 2021. The tenant was one of the original tenants at this property but then had left following a signed variation. She rejoined the tenancy after signing a further variation with her taking responsibility for the premises, on 16 July 2024. At the end of this tenancy, she was the sole tenant.
The landlord says that the tenant did not give the required notice to end the tenancy. I heard that the tenant advised the landlord face to face on 28 November 2024 at an inspection that she would be moving out that day. When the landlord came to the property the following day with a vacate letter the landlord saw that the tenant had left although it appeared that the tenant returned at some point because on other visits it was seen that the vacate letter was moved, as was a rent summary that was left in the door on a different date.
I heard that the landlord managed to locate a new tenant who took possession on 14 December 2024. The tenant was advised of this by text message on 13 December 2024. The landlord says that the tenant did not return the keys but that they did not need to do work around the property prior to the new tenant moving in (such as cleaning) as the new tenant wanted to move in immediately.
The RTA confirms the notice periods that are required in order to terminate a tenancy. For a tenant in a periodic tenancy like this the notice is 28 days (section 51(2B) RTA - as applicable at the relevant time). I am not satisfied that such notice was given. I am also satisfied that the landlord did not take possession of the property until 14 December when it was re-tenanted.
I am satisfied the landlord re-rented the property from 14 December 2024 and acted promptly in re-tenanting the premises. The landlord provided rent records which prove the amount owing at the end of the tenancy.
I award the landlord $2,098.77 in rent arrears/rent in lieu of notice. Abandonment
The landlord claims the tenant abandoned the premises. The landlord seeks exemplary damages for abandonment.
A tenant commits an unlawful act if they abandon the premises when the rent is in arrear. Exemplary damages may be awarded up to a maximum of $1,500.00. See section 61(5) and Schedule 1A Residential Tenancies Act 1986.
I do not consider the tenant abandoned the premises. She failed to give the correct notice. However, this does not amount to abandonment. A tenancy is abandoned where the tenant leaves the premises without reasonable excuse, not intending to return or to meet their obligations, and fails to notify the landlord. The landlord was notified here. This part of the claim is dismissed.

Did the tenant meet her end of tenancy obligations?

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.
Rubbish: I am satisfied that the tenants have left some wood and poles. However, the landlord has not yet disposed of the items despite the tenancy ending in December and new tenants being at the property. I am not satisfied that the landlord will incur the loss as claimed and therefore I dismiss this part of the claim.
Key replacement: A scan of the keys as provided at the outset of the tenancy is provided. The landlord replaced the locks as the landlord says that the tenant did not return the keys to the front and back door. I have no reason to doubt this.
An invoice for $193.68 is also provided to show the loss to the landlord. The sum ordered is proven.

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 careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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.
In such a claim betterment and depreciation should be taken into account. 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 have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
The landlord brings the following claims for damage. Splashback panel
The landlord’s claim for damage to a splashback panel is dismissed. I consider it to be fair wear and tear and the landlord’s indicated that they would no longer pursue this part of the claim. Broken kitchen window
I am satisfied that the kitchen window was broken during the course of the tenancy. Broken windows are rarely fair wear and tear, and more likely to represent careless or intentional damage. The tenant has not disproven liability for the damage.
The landlord has replaced the window at a cost of $148.87. I do not consider that the cost of replacing a broken window should be depreciated. I therefore award the full amount sought. Broken towel rail
The landlord says that the tenant has broken the towel rail and provided photographs to show a small towel rail is indeed off the wall in part.
When people live in houses, they will cause wear and tear, that is expected. That naturally means a tenant will cause some damage to the dwelling, that would be a consequence of normal use of the premises. The question in these sorts of cases becomes whether the damage that has been caused is beyond the level of fair wear and tear, and falls into the category of damage that the tenant should be liable for. It must be remembered that tenants are only liable for careless or intentional damage, the RTA does not hold tenants liable for any other sort of damage, including accidental damage (unless also careless).
Given the nature of the damage here I am not satisfied this is more than fair wear and tear or accidental damage.
In any event, the landlord has not fixed the issue and therefore there is insufficient supporting evidence to prove the landlord’s loss as claimed. I cannot be satisfied that the landlord will remedy the issue or incur the sum claimed. The property has already been re-tenanted and over 2 months has passed since the end of the tenancy.
The claim is dismissed. Patched holes and paint
The landlord says that the tenant has damaged the walls and so they require patching and painting. The claim is for the following: a) hole in wall in bedroom 1; b) poor plasterwork in the hallway; c) small holes beside the fireplace; and d) damage to the kitchen wall.
The damage is not fair wear and tear, and the tenant has not proven the damage was not careless or intentional damage. I accept the damage occurred during the tenancy.
The landlord seeks $2,070 but the work is yet to be undertaken. I consider that in these circumstances there is insufficient supporting evidence to prove the landlord’s loss as claimed. I cannot be satisfied if and when the landlord will remedy the issue or that the landlord will incur the sum as claimed.
The property has already been re-tenanted and over 2 months has passed since the end of the tenancy. Further, even if I were to make an award depreciation would need to be taken into account and this would have likely resulted, at best, in a nominal award. This is because at the start of the tenancy the bedroom is recorded as having scuffs marks and dents in the walls, the hallway had dents. There was also insufficient evidence concerning when the walls had previously been repainted, the landlords only having acquired the property in 2021.
This claim is dismissed. Door and door surround
The landlord says that the tenant has damaged a door and its surround. I accept that the damage is not fair wear and tear, and the tenant has not proven the damage was not careless or intentional damage. I accept the damage occurred during the tenancy. Given the nature of the damage I find that the damage was most likely intentional.
The landlord has not yet undertaken the work.
Usually, as above, I would not allow the claim without an invoice, but in the particular circumstances of this damage I find it is reasonable to make an award. This is because I am satisfied that at least part of the damage needs to be repaired in the short term. A door clearly cannot be left hanging off its hinges.
The door is recorded, at the start of the tenancy as being cracked. The landlord say it is an original 1960s door. The builder’s quote for the door replacement quote records that there is borer.
Depreciation must also therefore be taken into account in relation to the repair. I have considered the quote, the age and the condition of the door and frame, and the fact that the landlord has yet to repair or replace the door and I award the landlord $100.00 for the door damage. Bond
I have released the bond as part payment for the sums ordered. Carpet claims
The landlord wanted to bring additional claims in relation to insurance excesses for damaged carpet.
I could not hear this part of the case because the landlord sought to add this to its application just two days prior to the hearing simply by filing a table. No reference was made to adding claims. This timescale and way in which the claim was added means that the tenant has not had sufficient notice of this part of the claim.
The landlord may file another claim in respect if the landlord wants to do this. I have recorded that the landlord may do this in my order. I have discussed with the landlord that they will have to consider the appropriate service method on the tenant if that application is made because two months has since passed since the end of this tenancy (see s 91A, RTA). Filing fee and suppression
Because Selwyn Metcalfe Limited has substantially succeeded with the claim I have reimbursed the filing fee.
No suppression order was sought so I did not need to consider this.

Tenancy Tribunal case 5120669 — Rent arrears at 26 Collins Street, Hawera, Hawera 4610

At a glance

Tenancy Tribunal case 5120669 — Rent arrears at 26 Collins Street, Hawera, Hawera 4610

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Who is the landlord?

How much does the tenant owe in rent?

Did the tenant meet her end of tenancy obligations?

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

Dismissed claims

Order

Reasons

Who is the landlord?

How much does the tenant owe in rent?

Did the tenant meet her end of tenancy obligations?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions