What was the outcome of Tenancy Tribunal case 5407973?

The tribunal order states: Nicholas Bidwell and Ashley Jerry to pay City Rentals and Sales Limited

How much money was awarded in case 5407973?

Filing Fee: $28.00 awarded to landlord; Property Damage: $750.00 awarded to landlord

What type of tenancy dispute was case 5407973?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5407973?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13301634-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5407973?

The tribunal order states: Nicholas Bidwell and Ashley Jerry to pay City Rentals and Sales Limited

How much money was awarded in case 5407973?

Filing Fee: $28.00 awarded to landlord; Property Damage: $750.00 awarded to landlord

What type of tenancy dispute was case 5407973?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5407973?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13301634-Tenancy_Tribunal_Order.pdf.

Unit/Flat Unit 208, 43 Edwin Street, Mount Eden, Auckland Tenancy Tribunal Case 5407973 — Property damage

Order

Claims and awards in Tenancy Tribunal application 5407973 — net $778.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet damage	$750.00	Carpet damage
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$778.00
Bond	$2,700.00
Total payable by Tenant to Landlord	$778.00

Nicholas Bidwell and Ashley Jerry to pay City Rentals and Sales Limited $778.00 from the bond, calculated as shown in table below:

The Bond Centre is to pay the bond of $2,700.00 (6247823-014) immediately apportioned as follows: City Rentals And Sales Limited: $778.00 Nicholas Bidwell and Ashley Jerry: $1,922.00

Reasons

Both parties attended the hearing. Mr Brown represented the landlord. Mr Bidwell represented the tenants.

The landlord has applied for the cost ($3,195.00) to replace the carpets and underlay in the premises, payment of the bond, and reimbursement of the filing fee following the end of the tenancy.

Are the tenants responsible for the damage to the premises?

To be successful in a claim for damage to the premises the landlord must prove that damage occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they, or others at the premises with their permission, did not carelessly or intentionally cause or permit the damage: sections 40(2)(a), 41 and 49B of the Residential Tenancies Act 1986 (the Act).

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): section 49B(3)(a) of the Act. 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): section 49B(3)(b) of the Act.

Mr Bidwell did not dispute that the carpets in the two bedrooms and the living room were damaged during the tenancy. In particular, water overflowing from a pot plant kept in the living room had caused extensive staining and damage to the carpet and likely the underlay beneath. Mr Bidwell also accepts that there was another “curry” stain on the living room carpet close to the kitchen area, and minor stains in the master bedroom, in particular a small stain from another pot plant, and some stains on the carpet in the other bedroom (used by Mr Bidwell as an office).

I accept that the damage to the living room and master bedroom carpets caused by the pot plants is beyond fair wear and tear, and I am satisfied that the damage was caused carelessly by the tenants not taking due care when watering the plants. I have some doubt whether the minor small stains (as shown by the photograph provided by the landlord) in the office/bedroom is more than what can reasonably be considered to be fair wear and tear in a tenancy of some four years. Moreover, there is no evidence to support that these stains could not be removed by commercial cleaning. Mr Brown confirmed that no attempts were made to have the carpets cleaned at the end of the tenancy. There is also no evidence to support that the underlay in the bedrooms required replacement due to tenant damage. The damage caused by the pot plan in the master bedroom appears, from the photograph provided, to be a small area in a corner of the room and the damage appears to have not penetrated below the surface of the carpet.

Taking all these factors into account, including betterment and depreciation (the carpets were 7 years old and carpets are expected to last approximately 10 to 12 years before requiring replacement), I consider $750.00 is reasonable to compensate the landlord for the damage to the carpets.

Mr Bidwell claims that the damage should be covered by the landlord’s insurance. The tenancy agreement records that there is “Body Corporate” insurance with NZI with an excess of $400. Evidence was also provided that establishes that the landlord has contents insurance with FMG. Generally, carpets are covered by the landlord’s contents policy. However, the FMG policy document excludes gradual damage (such as the damage caused overtime by the watering of the pot plants), with limited exceptions which do not appear to apply here. However, even if the damage was covered by the landlord’s insurance, the insurer would likely require an excess to be payable for each room that sustained damage because the damage occurred at different times.

The landlord has been partially successful in its claim, and I consider this an appropriate case to award it payment of the Tribunal application fee.

Claims and awards in Tenancy Tribunal application 5407973 — net $778.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet damage	$750.00	Carpet damage
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$778.00
Bond	$2,700.00
Total payable by Tenant to Landlord	$778.00

Order

Nicholas Bidwell and Ashley Jerry to pay City Rentals and Sales Limited $778.00 from the bond, calculated as shown in table below:

The Bond Centre is to pay the bond of $2,700.00 (6247823-014) immediately apportioned as follows: City Rentals And Sales Limited: $778.00 Nicholas Bidwell and Ashley Jerry: $1,922.00

Reasons

Both parties attended the hearing. Mr Brown represented the landlord. Mr Bidwell represented the tenants.
The landlord has applied for the cost ($3,195.00) to replace the carpets and underlay in the premises, payment of the bond, and reimbursement of the filing fee following the end of the tenancy.

Are the tenants responsible for the damage to the premises?

To be successful in a claim for damage to the premises the landlord must prove that damage occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they, or others at the premises with their permission, did not carelessly or intentionally cause or permit the damage: sections 40(2)(a), 41 and 49B of the Residential Tenancies Act 1986 (the Act).
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): section 49B(3)(a) of the Act. 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): section 49B(3)(b) of the Act.
Mr Bidwell did not dispute that the carpets in the two bedrooms and the living room were damaged during the tenancy. In particular, water overflowing from a pot plant kept in the living room had caused extensive staining and damage to the carpet and likely the underlay beneath. Mr Bidwell also accepts that there was another “curry” stain on the living room carpet close to the kitchen area, and minor stains in the master bedroom, in particular a small stain from another pot plant, and some stains on the carpet in the other bedroom (used by Mr Bidwell as an office).
I accept that the damage to the living room and master bedroom carpets caused by the pot plants is beyond fair wear and tear, and I am satisfied that the damage was caused carelessly by the tenants not taking due care when watering the plants. I have some doubt whether the minor small stains (as shown by the photograph provided by the landlord) in the office/bedroom is more than what can reasonably be considered to be fair wear and tear in a tenancy of some four years. Moreover, there is no evidence to support that these stains could not be removed by commercial cleaning. Mr Brown confirmed that no attempts were made to have the carpets cleaned at the end of the tenancy. There is also no evidence to support that the underlay in the bedrooms required replacement due to tenant damage. The damage caused by the pot plan in the master bedroom appears, from the photograph provided, to be a small area in a corner of the room and the damage appears to have not penetrated below the surface of the carpet.
Taking all these factors into account, including betterment and depreciation (the carpets were 7 years old and carpets are expected to last approximately 10 to 12 years before requiring replacement), I consider $750.00 is reasonable to compensate the landlord for the damage to the carpets.
Mr Bidwell claims that the damage should be covered by the landlord’s insurance. The tenancy agreement records that there is “Body Corporate” insurance with NZI with an excess of $400. Evidence was also provided that establishes that the landlord has contents insurance with FMG. Generally, carpets are covered by the landlord’s contents policy. However, the FMG policy document excludes gradual damage (such as the damage caused overtime by the watering of the pot plants), with limited exceptions which do not appear to apply here. However, even if the damage was covered by the landlord’s insurance, the insurer would likely require an excess to be payable for each room that sustained damage because the damage occurred at different times.
The landlord has been partially successful in its claim, and I consider this an appropriate case to award it payment of the Tribunal application fee.

Tenancy Tribunal case 5407973 — Property damage at Unit/Flat Unit 208, 43 Edwin Street, Mount Eden, Auckland

At a glance

Tenancy Tribunal case 5407973 — Property damage at Unit/Flat Unit 208, 43 Edwin Street, Mount Eden, Auckland

At a glance

Award balance

Claims & awards

Order

Reasons

Are the tenants 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

Are the tenants responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions