Claimant wins damages for breach of tenancy agreement

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[2025] NZTT 5153165

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] must pay [COMPANY] As Agent For [NAME] $3,185.82 immediately, calculated as shown in table below.

Description Landlord Tenant Lawns and Garden work $586.50 Lock/key replacement $136.85 Replace furnishings: Television $250.00 Replace furnishings: Bins $29.50 Repairs: Walls and kitchen cupboards $1,828.22 Repairs: Glass pane in door $327.75 Filing fee reimbursement $27.00 Total award $3,185.82 Total payable by Tenant to Landlord $3,185.82

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Reasons:

1. The landlord attended the hearing. The tenant did not.

2. The landlord has applied for compensation and reimbursement of the filing fee following the end of the tenancy.

3. As the applicant, the landlord must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

4. As noted by the District Court in Katipo 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 of 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.

5. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence at the hearing). I must weigh this evidence to decide what is more likely.

CLEANING, LAWNS & KEY AND LOCK REPLACEMENT

6. 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 (RTA).

7. The landlord claims the tenant did not leave the premises reasonably clean and tidy and did not return the keys. The landlord also claims the tenant did not leave the television and bins that were provided as chattels at the end of the tenancy. The landlord seeks compensation for the following amounts:

a. Internal cleaning: $280.00

b. Lawns: $586.50

c. Replace lock and keys: $136.85

d. Replace television: $549.00

e. Replace bins: $29.50

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8. I deal with each issue in turn below.

Internal cleaning & lawns

9. Section 40(1)(e)(iii) RTA requires a tenant to leave the premises reasonably clean and tidy. Section 2 RTA confirms that “premises” includes any land.

10. “Reasonably” clean means clean to the standard an average, reasonable bystander would consider reasonable.1 It does not mean commercially clean,2 spotless3 or to a hotel or motel standard.4 The better the premises and the higher the rent payable, the higher the standard expected.5

11. The landlord claims the tenant did not leave the premises reasonably clean and tidy. The landlord submitted photographs taken at the end of the tenancy, as well as invoices for the following amounts:

a. Cleaning: $560.00 (the landlord only sought $280.00)

b. Lawns: $586.50

12. Based on the photographs provided by the landlord, I find the tenant left the inside of the premises reasonably clean and tidy, but not the lawns and garden.

13. All rubbish and personal belongings have been removed from the inside of the property. Most of the carpet appears to have been vacuumed and surfaces wiped down. I accept that the glass door on the oven is dirty and that there is some dust and mould on the windowsills however, I do not find these minor defects render the entire property to be unreasonably clean and tidy. The property appears relatively dated and the rent was $420.00 per week. Taking these factors into account, together with the photographs, I find that the tenant left the inside of the premises reasonably clean and tidy.

14. The lawns and garden are a different story. The grass is overgrown, lots of weeds are present and some general debris is spread across the lawns and garden. There are also a number of holes in the lawn, which the landlord claims are the result of the tenant’s dog digging up the ground. I find the tenant did not leave the lawns and garden reasonably clean and tidy.

15. The landlord’s claim for compensation for breach of the tenant’s obligations under section 40(1)(e)(iii) RTA is granted for $586.50.

1 Housing New Zealand v Holloway NZTT Auckland TT215/93, 8 February 1993 at [8]. 2 Mills v Kiwi Property Care Ltd NZTT Auckland TT215/93, 8 February 1993 at [8]. 3 Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 4 Richards v Scully NZTT Christchurch TT858/97, 8 May 1997 at [3]; Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 5 Westwood v Western [1994] DCR 759 at [770].

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Replace keys and locks

16. The landlord gave evidence that the tenant did not return the keys at the end of the tenancy. The landlord has had the keys and locks replaced at a cost of $136.85 and submitted an invoice for this amount.

17. In the absence of any evidence to the contrary, I accept the landlord’s evidence. Their claim for compensation to replace the keys and locks is granted for $136.85.

Replace television and bins

18. The landlord gave evidence that a television was provided to the tenant at the beginning of the tenancy and missing at the end. Similarly, the landlord claims three bins were provided to the tenant at the beginning of the tenancy and missing at the end.

19. The landlord submitted photographs of the property taken at the beginning of the tenancy. There is a television mounted to the wall in the lounge. Photographs taken at the end of the tenancy show the television is missing.

20. The landlord submitted an invoice dated 20 February 2024 for $43.00 for the purchase of three bins at the beginning of the tenancy, as well as an invoice dated 20 February 2025 for the purchase of two replacement bins at the end of the tenancy.

21. The landlord has proven on the balance of probabilities that the tenant did not return the television or three bins provided to them at the beginning of the tenancy.

22. The landlord has not purchased a new television. They gave evidence that the property has been re-tenanted and they have undertaken to provide the new tenants with a television. The landlord submitted a quote for a television for $549.00. The landlord gave evidence that the quote is for a different television than what was initially provided. The landlord states the previous television was approximately 2 years old.

23. I accept that the landlord has suffered a financial loss by not having the original television returned at the end of the tenancy however, they have not proven that this loss equates to $549.00. In the absence of this evidence, I must determine a reasonable amount of compensation. I consider $250.00 to be fair and reasonable. This sum fairly reflects the size and approximate age of the television at the end of the tenancy, noting the rate at which televisions tend to depreciate. The landlord should be returned to the position they would have been in had the tenant not breached their obligations. They should not be any better or worse off.

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24. Regarding the missing bins, the landlord submitted an invoice for $29.50 for the purchase of two new bins. Their claim for compensation to replace the bins is granted for this amount.

DAMAGE

25. 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.

26. The landlord claims the tenant is responsible for the following damage:

a. Holes in the walls

b. Broken glass in a door

c. Vinyl stickers on the kitchen cupboards

27. The landlord submitted photographs taken at the beginning and end of the tenancy. The photographs taken at the beginning show the walls in good condition with no holes. There are no broken glass panes in any of the doors. The kitchen cupboards are painted white and whilst paint is peeling off on the inside, there is no paint peeling off on the exterior. In contrast, the photographs taken at the end show various holes in the walls, paint peeling on the outside of the kitchen cupboards and a glass pane missing from one door.

28. The landlord gave evidence that the tenant stuck white vinyl on the outside of the kitchen cupboards because the paint was beginning to peel. The landlord claims they did not give the tenant permission to do this and removing the vinyl caused a lot of paint to peel off the outside of the cupboards.

29. Based on the photographs submitted by the landlord and evidence given at the hearing, I find that the following damage occurred during the tenancy:

a. Holes in the walls

b. Broken glass in door

c. Vinyl stuck on the kitchen cupboards

30. The damage is more than fair wear and tear, and the tenant has not disproved liability.

31. The landlord gave evidence that their insurance claim was not accepted because the damage was assessed as being intentional, which their insurance did not cover.

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32. The landlord has had the walls and kitchen cupboards repaired at a cost of $2,162.98 and submitted an invoice for this amount. Of this total, $84.76 relates to removing the television bracket and repairing some screw holes. The tenant is not responsible for this cost and it needs to be deducted from the total amount of compensation sought.

33. From the total repair cost of $2,162.98, $894.70 represents the cost incurred to repair the kitchen cupboards. The landlord gave evidence that the paint on the exterior of the cupboards was already peeling when the tenant stuck vinyl on them. The landlord must be returned to the same position they would have been in had the tenant not put vinyl on the kitchen cupboards and must not be better or worse off. The landlord is in a better position now that the kitchen cupboards have been entirely repainted. Therefore, I consider there needs to be a deduction for betterment. I find $250.00 to be a fair and reasonable amount to be deducted.

34. The landlord’s claim for compensation to repair the walls and kitchen cupboards is granted for an adjusted amount of $1,828.22.

35. The landlord has had the glass pane in the door repaired at a cost of $327.75 and submitted an invoice. The landlord’s claim for compensation to replace the glass pane is granted in full for this amount.

36. The amounts ordered are proved.

FILING FEE

37. [COMPANY] As Agent For [NAME] has wholly succeeded with the claim I must reimburse the filing fee.

[NAME]

11 April 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: