Rent Arrears and Bond Refunds Ruling by Tenancy Tribunal

__________________________________________________________________________________ 5100208 1

[2025] NZTT 5100208

TENANCY TRIBUNAL AT PAPAKURA | TE TARAIPIUNARA RETIHANGA KI PAPAKURA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] to pay [COMPANY] - As Agent For [NAME] $2,166.44 from the bond, calculated as shown in table below.

2. [COMPANY] is to pay the bond of $2,166.44 (3247374-012) to [COMPANY] - As Agent For [NAME] immediately. [COMPANY] is to pay the bond of $813.56 (3247374-012) to [NAME] immediately.

Description Landlord Tenant Rent arrears to 15 November 2024 $1,702.86 Water rates $71.33 Carpet Cleaning Cleaning

$140.00 $70.00

Repairs $11.50 Letting fee $143.75 Filing fee reimbursement $27.00 Total award $2,166.44 Bond $2,166.44 $813.56

Reasons:

1. Both parties attended the hearing. [NAME] appeared for the landlord with a property manager, [NAME] also in attendance.

__________________________________________________________________________________ 5100208 2

2. The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

Burden of proof

3. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. One of these standards is that it is for the party bringing the application to establish their claims on the balance of probabilities. That means the party bringing the claim 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 the is burden.

4. 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.

5. If the claim is not established to the balance of probability, it must be dismissed.

How much is owed for rent arrears, water rates and power?

6. The parties signed a one-year fixed-term tenancy agreement to begin on 14/02/2024 and end on 14/02/2025. The landlord on the tenancy agreement is [NAME] and the property manager is [COMPANY]. The tenant on the tenancy agreement is [NAME].

7. [NAME] was unhappy with the condition of the premises and her perception that the landlord was not addressing the work that she believed was needed. One of the agents who she dealt with told her that if she was unhappy with the tenancy, she could end the tenancy. [NAME] took this to mean that she wouldn’t be liable for the ongoing rent after the date she moved out. [NAME] handed up an email chain (viewable on her telephone) that showed a response on 10 October 2024 to her email from 8 October 2024, in which the agent makes it clear that he couldn’t confirm that Ms [NAME]- [NAME] would not be liable for the rent after her move-out date. Ms [NAME]- [NAME] stated that she hadn’t seen this email at the time because she was in the process of moving out.

8. [NAME] moved out of the premises and handed in her keys on 25 October 2024. The landlord moved quickly and a new tenant moved into the premises on 15 November 2024. This is the date up until which Ms [NAME]-

__________________________________________________________________________________ 5100208 3

[NAME] was liable for rent. [NAME]’ rent was paid in advance, but there was still a shortfall of $1,702.86 as proved by the documents provided by the landlord.

9. [NAME] does not dispute the final water bill of $71.33.

10. The landlord claims $76.33 for power. [NAME] disputes this.

11. When [NAME] moved out of the premises, she had her power account transferred to her new address.

12. The landlord then had to engage a power provider and they chose [NAME]. The connection cost and the power used by tradespeople between the tenancies amounted to $76.33.

13. The landlord raised that the Tribunal has found in a previous decision that power used between tenancies, whilst a fixed-term tenancy is still afoot, is the liability of the tenant. See NZTT 4956995 Papakura, 15 November 2024. In that case the outgoing tenant disconnected a power supply that was needed for a water pump. Keeping the water pump supplied with power remained the responsibility of the tenant until the new tenants moved in, and so the power was reconnected and this cost, as well as the power used was charged to the tenants.

14. A landlord is responsible for all outgoings in respect of a premises whether or not the premises are occupied. A tenant is responsible for all outgoings that are exclusively attributable to the tenant’s occupation of the premises or the tenant’s use of the facilities. See the Residential Tenancies Act, 1986 (the “RTA”) sections 39(1) and (3).

39 Responsibility for outgoings

(1) The landlord is responsible for all outgoings in respect of the premises that— (a) are incurred whether or not the premises are occupied; and (b) are incurred for common facilities.

(2) Without limiting the generality of subsection (1), the landlord is responsible for the cost of— (a) the general rate (within the meaning of section 13 of the Local

Government (Rating) Act 2002) payable in respect of the premises; and (b) insurance premiums payable in respect of the premises; and (c) any body corporate levies payable in respect of the premises.

(3) The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities.

(4) Without limiting the generality of subsection (3), the tenant is responsible for the following charges, incurred during the tenancy, in respect of the premises: (a) electricity and gas:

https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM132218#DLM132218

__________________________________________________________________________________ 5100208 4

(b) telephone and Internet: (c) supply of water if the water supplier charges for water provided to the

premises on the basis of consumption.

15. There is no question as to when the tenant ceased to occupy the premises: The tenancy ended by agreement as many fixed term tenancies do, and perhaps even at the suggestion of the landlord. The move out date was signalled in advance and the keys were returned to the landlord in a timely manner on 25 October 2024. Both parties conducted the ending of the tenancy in good faith.

16. Because of the above factors, I determine that the tenancy ended on 25 October 2024. This does not negate the fact that because the tenant had signed a one-year fixed-term tenancy, the tenant remained responsible for rent until a later date, in this case, when the new tenants moved in.

17. In the case at hand there was no claim that power was needed for a utility serving the premises whether or not a tenant was living there. It was inevitable that an electricity provider was going to be needed. This would have been a requirement for the ingoing tenant, or if there was none, for the landlord.

18. Because it is not in dispute that the power charges being sought do not relate in any way to the tenant’s occupancy of the premises, the tenant’s use of power, or the tenant’s responsibilities for auxiliary utilities at the premises between the end of her occupancy but while the tenancy remained afoot, I determine that a strict interpretation of section 39 is appropriate here. Because the power usage after the tenant moved out is not exclusively attributable to the tenant, the tenant is not liable for the power costs.

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

19. 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. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.

20. The landlord produced photographs which she claims show the tenant did not leave the premises reasonably clean and tidy at the end of the tenancy. The landlord also produced photographs from the start of the tenancy that she claims shows the premises were significantly better at the start of the tenancy than at the end of the tenancy.

21. Conversely, the tenant produced photographs which she claims shows the premises were not reasonably clean and tidy at the start of the tenancy and photographs that she claims show the premises were significantly cleaner at the end of the tenancy than at the start.

__________________________________________________________________________________ 5100208 5

22. I can see from the landlord’s end of tenancy photographs that the premises were not faultless, but this is not the standard required of a tenant. A responsible landlord may be expected to undertake a deep clean between tenancies.

23. My assessment is that at the end of tenancy, with two exceptions the premises were left reasonably clean and tidy: the tenant accepts that there was an issue with fleas and vermin at the end of the tenancy (which she says was the case also at the beginning of the tenancy), and that she caused some stains on the carpet. I find the tenant liable for costs associated to these two issues.

24. The landlord is claiming $10.00 + GST for one lightbulb. The tenant does not dispute this.

25. The amounts ordered are proved.

Is the tenant responsible for the damage to the premises?

26. 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.

27. The landlord is claiming $270.00 to patch a hole cut in the wall during the tenancy and $180.00 to replace damaged glass.

28. The tenant disputes both claims. She claims she came home one day and found that a hole had been cut in one of her children’s bedroom walls. It is a hole that is the size and shape of a light switch, and behind it is an electrical wire. She contacted the landlord about this, but could find nothing out.

29. This is an unusual situation to say the least. The landlord could not offer an explanation.

30. However, the tenant also said that on another occasion she returned home at about 7.30 pm, and found a [NAME] in her house fixing a window. She had been given no notice of this repair being ordered, although she knew it was necessary. In the hearing the landlord initially stated she had no knowledge of the repair being ordered or undertaken. The landlord checked the log and could find no record of any keys to the premises being uplifted around that date.

31. The tenant produced a video of the person fixing the window and a photograph of the person’s name and a phone number for the person that authorised him to do the work written on a piece of paper.

32. During an adjournment I called the number and spoke to a person called “[NAME]” who stated that he authorised one of his sub-contractors to do the

__________________________________________________________________________________ 5100208 6

work. [NAME] said that he had in turn been authorised to do the work, by a person called “[NAME]”.

33. When the hearing re-convened [NAME], ([NAME]) stated that he recalled booking the work, but did not know how the subcontractor had got into the premises.

34. [NAME] then made another inquiry and found that the job had been booked two days before [NAME] had come home to find the workman in her premises.

35. It was only through persistent questioning by the Tribunal and the Tribunal calling Mr [NAME], that the landlord was able to workout who Mr [NAME] was and that he had been authorised to do the work by the landlord.

36. This event, and the circumstances around it, lead me to the conclusion that the hole in [NAME]’s wall may well have been made by one of the landlord’s contractors without the landlord having knowledge of the details surrounding the event.

37. In all regards I have found [NAME] to be a reliable and honest person in her providing information to the Tribunal, and I accept that she did not make the hole in the wall, and that nobody who was on the premises with her consent made the hole either and that she does not know who made the hole in the wall.

38. The claim to repair the hole in the wall is not proved.

39. With regard to the broken window, [NAME] stated that when a tradesperson was attending the property about a leaky downpipe, he pushed the window which like others, was sticking badly. When he did so, the window cracked. [NAME] then contacted the landlord and reported it straight away.

40. The landlord stated that on the day when the tradesperson attended the property, the tradesperson phoned and stated that the tenant would be phoning and claiming that he had cracked a window, but in fact he had not.

41. No further explanation as to how the crack occurred was offered.

42. I am not satisfied that on the balance of probabilities the landlord has proved that the tenant caused the damage to the window.

Recovery of reasonable expenses incurred by the landlord, section 44A

43. If a tenant ends a fixed-term tenancy early, a landlord may recover reasonable expenses incurred in re-letting the premises. A landlord is required to provide an itemised account to the tenant of any expenses incurred in respect to reletting the premises.

44. The landlord is seeking $1,650.25 for fees incurred to the tenant breaking the fixed term tenancy.

__________________________________________________________________________________ 5100208 7

45. In my view the fees claimed include expenses that are reasonably incurred in the day to day running of a property management business and are not expenses that should be referred to a tenant. A property management company can arrange their affairs in any number of ways; it is not for a tenant to underwrite this business. I also consider that some of the claims are unreasonably high; for example final inspection that amounts to five hours of work.

46. I accept that advertising expenses are reasonable, as are some costs for photocopying and petrol. However I do not see that a charge for “phones” should be charged against the tenant.

47. In all I total $575.00 that I consider reasonable expenses. Because the one-year fixed-term tenancy had already run for 9 months, the landlord would have been liable for these expenses in a further 3 months when the tenancy ended without an ability to make a claim against the tenants. As 75% of the fixed-term had run its course, I consider that only 25% of the $575.00 should be made by the tenant.

48. [COMPANY] - As Agent For [NAME] has substantially succeeded with the claim I have reimbursed the filing fee.

[NAME]

28 April 2025

__________________________________________________________________________________ 5100208 8

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/

__________________________________________________________________________________ 5100208 9

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: