What was the outcome of Tenancy Tribunal case 5176874?

The tribunal order states: Faauluuluga Luga Schmidt and Ngatokorua Archie Ngaro must pay Up Property

How much money was awarded in case 5176874?

Cleaning: $250.00 awarded to landlord; Cleaning: $300.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $550.00 awarded to landlord; Property Damage: $650.00 awarded to landlord; Property Damage: $3,300.00 awarded to landlord

What type of tenancy dispute was case 5176874?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5176874?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12059649-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5176874?

The tribunal order states: Faauluuluga Luga Schmidt and Ngatokorua Archie Ngaro must pay Up Property

How much money was awarded in case 5176874?

Cleaning: $250.00 awarded to landlord; Cleaning: $300.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $550.00 awarded to landlord; Property Damage: $650.00 awarded to landlord; Property Damage: $3,300.00 awarded to landlord

What type of tenancy dispute was case 5176874?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5176874?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12059649-Tenancy_Tribunal_Order.pdf.

35 Morus Road, Massey, Auckland 0614 Tenancy Tribunal Case 5176874 — Property damage

Claims and awards in Tenancy Tribunal application 5176874 — net $2,077.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Insurance excess for laminate flooring repair	$550.00	Insurance excess for laminate flooring repair
Replace damaged roller blinds x 2	$650.00	Replace damaged roller blinds x 2
Carpet Cleaning	$250.00	Carpet Cleaning
Cleaning	$300.00	Cleaning
Insurance excess x 6 for carpet damage and wall damage	$3,300.00	Insurance excess x 6 for carpet damage and wall damage
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,077.00
Total payable by Tenant to Landlord	$2,077.00

Order

Faauluuluga Luga Schmidt and Ngatokorua Archie Ngaro must pay Up Property Management Limited Vivan Yang $2,077.00 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenants made a cross application for overpayment of rent and an unlawful rent increase, refund of the bond and reimbursement of the filing fee following the end of the tenancy.

RELEVANT LEGAL CONSIDERATIONS

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 party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, 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.
In summary, I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. If any claim is not established to the balance of probability, it must be dismissed. The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision.

LANDLORD CLAIMS

Did the tenants 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. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The tenants agree that the carpet required steam cleaning to try and remove stains in the bedrooms and that the oven required cleaning. They accepted responsibility for these costs.
The amounts ordered are proved.

Are the tenants 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.
The following damage was caused during the tenancy: a. Damage to two roller blinds the tenants accept were damaged by their family coming in and out of the ranch sliders without pulling up the blinds; b. Carpet stains from bubble gum and damage from beds and spilt liquids in all bedrooms; c. Scratches and dents and lifted paint on the walls throughout the house from Christmas lights and children knocking the walls. One dent was from a seizure one of the children had and he fell and hit the wall.
The damage is more than fair wear and tear, and the tenants have not disproved liability for the damage.
The amounts ordered are proved.
I have considered 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 have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan.
The house was brand new at the start of the tenancy and the carpet was just over a year old. The Inland Revenue depreciation schedule states that carpet has a lifespan of around 8 years and should be depreciated at around 13% per annum.

TENANTS CLAIMS

Overpayment of rent due to unlawful rent increase

Section 24 of the RTA states that the rent must not be increased within 12 months after the date of the commencement of the tenancy or within 12 months of the last increase. In addition, s24 (1)(g) of the RTA states that a landlord may not increase the rent during the term of the tenancy unless permitted by the provisions of the tenancy agreement to do so; and may do so only in accordance with this section and any such provisions of the tenancy agreement.
The tenancy commenced on 6 July 2023 for a fixed term of 12 months. The tenants say that part way through the 12 months the landlord increased their rent by $100.00 per week after their two adult sons moved into the premise.
The landlord stated the tenancy agreement provided for a maximum of 5 occupants and that when the tenants moved in, they and their three younger children resided in the house. When the tenants two older adult sons wanted to move into the house, the property manage sought permission from the landlord. The parties agreed to vary the tenancy agreement by consent to allow for a maximum of seven occupants for an additional $100.00 per week to reflect the increase in wear and tear on the premise.
After the agreed variation, the tenants were liable for rent of $850.00 per week.
The tenants say that their adult sons pick kiwi fruit and travel all around New Zealand and overseas to do this, so they should have only had to pay the additional rent for the weeks they were living at the premise and they were not there all the time.
The landlord confirmed the variation to the tenancy agreement was that the maximum number of occupants was increased to seven people for an additional $100.00 per week, which then had to be paid regardless of whether the adult sons were at home all week each week or not. The payment was for the legal right for them to live or stay there whenever they wished and not for the number of nights they resided in or stayed at the house.
I am satisfied that the partes agreed to vary the terms of the tenancy agreement by consent and that bot parties benefited form that agreement. It would be inequitable for the Tribunal to overturn that agreement made by the consent of willing adult parties with full capacity to make such an agreement.
The tenants claim for overpayment of rent is dismissed for lack of evidence to support their claim on the balance of probabilities.

OTHER CLAIMS

Reimbursement of filing fee

Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.
Because the landlord has wholly succeeded with its claims I must reimburse the filing fee.
Because Faauluuluga Luga Schmidt, Ngatokorua Archie Ngaro have not wholly or substantially succeeded with the claim I dismiss their claim for reimbursement of the filing fee. Name Suppression
The tenants apply for non-publication of their names and identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenants have not been wholly or substantially successful in this proceeding. I consider publication is in the public interest or justified because of the damage the tenants have done to the premise that I have found to be as a result of their careless acts or omissions or the careless acts or omissions of persons in the premise with their consent. tenants conduct or any other circumstances of the case.
The tenants’ application for non-publication is dismissed.

Claims and awards in Tenancy Tribunal application 5176874 — net $2,077.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Insurance excess for laminate flooring repair	$550.00	Insurance excess for laminate flooring repair
Replace damaged roller blinds x 2	$650.00	Replace damaged roller blinds x 2
Carpet Cleaning	$250.00	Carpet Cleaning
Cleaning	$300.00	Cleaning
Insurance excess x 6 for carpet damage and wall damage	$3,300.00	Insurance excess x 6 for carpet damage and wall damage
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,077.00
Total payable by Tenant to Landlord	$2,077.00

Order

Faauluuluga Luga Schmidt and Ngatokorua Archie Ngaro must pay Up Property Management Limited Vivan Yang $2,077.00 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenants made a cross application for overpayment of rent and an unlawful rent increase, refund of the bond and reimbursement of the filing fee following the end of the tenancy.

RELEVANT LEGAL CONSIDERATIONS

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 party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, 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.
In summary, I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. If any claim is not established to the balance of probability, it must be dismissed. The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision.

LANDLORD CLAIMS

Did the tenants 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. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The tenants agree that the carpet required steam cleaning to try and remove stains in the bedrooms and that the oven required cleaning. They accepted responsibility for these costs.
The amounts ordered are proved.

Are the tenants 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.
The following damage was caused during the tenancy: a. Damage to two roller blinds the tenants accept were damaged by their family coming in and out of the ranch sliders without pulling up the blinds; b. Carpet stains from bubble gum and damage from beds and spilt liquids in all bedrooms; c. Scratches and dents and lifted paint on the walls throughout the house from Christmas lights and children knocking the walls. One dent was from a seizure one of the children had and he fell and hit the wall.
The damage is more than fair wear and tear, and the tenants have not disproved liability for the damage.
The amounts ordered are proved.
I have considered 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 have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan.
The house was brand new at the start of the tenancy and the carpet was just over a year old. The Inland Revenue depreciation schedule states that carpet has a lifespan of around 8 years and should be depreciated at around 13% per annum.

TENANTS CLAIMS

Overpayment of rent due to unlawful rent increase

Section 24 of the RTA states that the rent must not be increased within 12 months after the date of the commencement of the tenancy or within 12 months of the last increase. In addition, s24 (1)(g) of the RTA states that a landlord may not increase the rent during the term of the tenancy unless permitted by the provisions of the tenancy agreement to do so; and may do so only in accordance with this section and any such provisions of the tenancy agreement.
The tenancy commenced on 6 July 2023 for a fixed term of 12 months. The tenants say that part way through the 12 months the landlord increased their rent by $100.00 per week after their two adult sons moved into the premise.
The landlord stated the tenancy agreement provided for a maximum of 5 occupants and that when the tenants moved in, they and their three younger children resided in the house. When the tenants two older adult sons wanted to move into the house, the property manage sought permission from the landlord. The parties agreed to vary the tenancy agreement by consent to allow for a maximum of seven occupants for an additional $100.00 per week to reflect the increase in wear and tear on the premise.
After the agreed variation, the tenants were liable for rent of $850.00 per week.
The tenants say that their adult sons pick kiwi fruit and travel all around New Zealand and overseas to do this, so they should have only had to pay the additional rent for the weeks they were living at the premise and they were not there all the time.
The landlord confirmed the variation to the tenancy agreement was that the maximum number of occupants was increased to seven people for an additional $100.00 per week, which then had to be paid regardless of whether the adult sons were at home all week each week or not. The payment was for the legal right for them to live or stay there whenever they wished and not for the number of nights they resided in or stayed at the house.
I am satisfied that the partes agreed to vary the terms of the tenancy agreement by consent and that bot parties benefited form that agreement. It would be inequitable for the Tribunal to overturn that agreement made by the consent of willing adult parties with full capacity to make such an agreement.
The tenants claim for overpayment of rent is dismissed for lack of evidence to support their claim on the balance of probabilities.

OTHER CLAIMS

Reimbursement of filing fee

Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.
Because the landlord has wholly succeeded with its claims I must reimburse the filing fee.
Because Faauluuluga Luga Schmidt, Ngatokorua Archie Ngaro have not wholly or substantially succeeded with the claim I dismiss their claim for reimbursement of the filing fee. Name Suppression
The tenants apply for non-publication of their names and identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenants have not been wholly or substantially successful in this proceeding. I consider publication is in the public interest or justified because of the damage the tenants have done to the premise that I have found to be as a result of their careless acts or omissions or the careless acts or omissions of persons in the premise with their consent. tenants conduct or any other circumstances of the case.
The tenants’ application for non-publication is dismissed.

Tenancy Tribunal case 5176874 — Property damage at 35 Morus Road, Massey, Auckland 0614

At a glance

Tenancy Tribunal case 5176874 — Property damage at 35 Morus Road, Massey, Auckland 0614

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDLORD CLAIMS

Did the tenants comply with their obligations at the end of the tenancy?

Are the tenants responsible for the damage to the premises?

TENANTS CLAIMS

OTHER CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDLORD CLAIMS

Did the tenants comply with their obligations at the end of the tenancy?

Are the tenants responsible for the damage to the premises?

TENANTS CLAIMS

OTHER CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions