Tenancy Tribunal Awards Rent Arrears, Dismisses Water and Carpet Claims

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[2025] NZTT 5132895

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted] Agent For [NAME]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] and [NAME] must pay [COMPANY] As Agent For [NAME] $4,417.86 immediately, calculated as shown in table below:

Description Landlord Tenant Rent arrears to 23 Nov 2024 $4,417.86 Total payable by Tenant to Landlord $4,417.86

2. By way of declaration, the term of the fixed-term tenancy of [NAME] and [NAME] at [ADDRESS], [POSTCODE] ended on 23 November 2024.

3. The landlord’s claims seeking compensation for unpaid water rates and compensation in relation to the carpet cleaning and replacement of the carpet are each dismissed.

Reasons:

1. Ms [NAME] attended the hearing and represented herself and her adult daughter, [NAME]. An attempt to call [NAME] went to

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voicemail. [NAME] confirmed the mobile number I called was the correct mobile number for Mr [NAME].

2. [NAME] appeared on behalf of the landlord.

3. The landlord has applied for rent arrears up until the end of the fixed term tenancy being 31 January 2025, water rates to 20 November 2024, and compensation for damage to carpet and carpet cleaning.

4. No bond was paid by the tenant.

Burden and standard of proof

5. The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).

6. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards.

7. 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 fraction 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.

8. 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.

9. 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.

How much is owed for rent?

10. The tenancy commenced on 18 May 2024. It was a fixed-term tenancy which was to end on 31 January 2025.

11. The landlord seeks rent arrears to 31 January 2025, a total of $13,240.00.

12. [NAME] accepts the tenant owes the landlord rent arrears, but disputes the amount sought. The tenant says they should only be liable for rent up until 15 November 2024.

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Rent arrears: the landlord’s evidence

13. The landlord says in early October 2024, the tenants approached the landlord seeking an early end to the fixed-term tenancy as they had found a new property to move to. The landlord says he told the tenants they could move out early but that they are still liable to pay rent until the end of the fixed-term tenancy agreement, being 31 January 2025.

14. The landlord says they entered into negotiations to see if agreement could be reached regarding an early end to the fixed-term tenancy, but no agreement was reached. Consequently, the landlord says the tenant is liable up until the end of the fixed-term.

15. The landlord says the negotiations were all done by email and text, but the landlord had not filed copies of any of the correspondence ahead of today’s hearing. As a result, I do not have that correspondence before me.

16. The landlord says the tenants moved out on 24 October 2024. The landlord says he attended the property on that day and asked the tenant to leave the keys under the mat. The landlord says the tenant left the keys as requested.

17. The landlord says the owner of the property decided to put the property on the market for sale, and it was marketed from 24 November 2024.

18. The property was sold on 16 December 2024.

Rent arrears: the tenant’s evidence

19. The tenant says that in September 2024 she contacted the landlord asking if she could extend the fixed-term tenancy beyond 31 January 2025. [NAME] says she was told the landlord intended to sell the property after the tenancy ended, therefore it was not possible to extend the tenancy beyond January 2025.

20. [NAME] says she then asked whether, if the tenants found a new property to move to before January, she could be released from the fixed-term tenancy early. [NAME] says she “haggled” with the landlord over text and the landlord agreed she could move out on 21 October 2024. [NAME] had not filed any evidence in response to the landlord’s claim, so again, no written evidence of the communications with the landlord was before me to consider.

21. [NAME] says after the messages were exchanged in which the parties allegedly agreed the tenants could move out, she verbally agreed to pay rent up until 15 November 2024.

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The law

22. Section 50 of the RTA states: (1) Subject in the case of a subtenancy to section 57, no tenancy to which this Act

applies shall terminate or be terminated otherwise than as follows:

(a) in the case of a fixed-term tenancy, on the expiry of the term of the tenancy or, if any of sections 55AA, 56A(1), 58(1)(d), (da), 58A, 59, 59A, or 59B apply, by giving notice in accordance with the applicable section.

[…]

(d) where the tenant surrenders the tenancy, or delivers up vacant possession of the premises, to the landlord with the landlord’s written consent.

(2) No right of termination to which subsection (1) applies limits any other right of termination that may also apply.

Analysis

23. I remind myself that the burden is on the landlord to prove their claim on the balance of probabilities.

24. The landlord did not file evidence of the communications he says occurred between the landlord and tenant in which the landlord says he declined the tenant’s request to end the tenancy early.

25. The landlord accepts they received the keys to the premises, and therefore took possession of the premises, on 24 October 2024. From 24 November 2024, the landlord says the premises was on the market for sale and the property was sold on 16 December 2024.

26. The tenant has not filed a cross-application seeking an order that the fixed-term tenancy be reduced. Nor has the tenant filed any written evidence to support her submission that the landlord agreed to the tenants moving out on 21 (or 24) October 2024.

27. Despite the lack of evidence regarding the communications between the parties, there was consensus between them that the tenants moved out on either 21 or 24 October 2024 with the landlord’s knowledge. The landlord accepts he had possession of the property from 24 October, albeit he says the tenant had to return on or about 7 November 2024 to take away some items left in the garage. By 24 November 2024, the landlord had listed the house for sale.

28. I find that the tenancy ended at 11:59pm on 23 November 2024. By that date, at the very latest, the tenant had surrendered the tenancy and delivered up vacant possession to the landlord. Although no evidence of the parties’ written communications were before me, both parties confirmed they were in text and/or email communications at that time and that the landlord knew the tenant

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was moving out on 21 or 24 October 2024. I find it is more likely than not that the landlord consented to the tenancy ending on 23 November 2024. I find that, by putting the property on the market for sale from 24 November 2024, the landlord accepted the tenancy had ended.

29. I award the landlord rent arrears up until 11:59pm on 23 November 2024.

How much is owed for water rates?

30. The landlord seeks $715.29 for unpaid water rates. In support of the application, the landlord has filed [NAME] invoices with the following dates:

a. [NAME] invoice 26/06/24 for consumption 22/05/24 – 25/06/24;

b. [NAME] invoice 26/08/24 for consumption 22/07/24 – 23/08/24;

c. [NAME] invoice 20/09/24 for consumption 23/08/24 – 20/09/24;

d. [NAME] invoice 24/10/24 for consumption 20/09/24 – 23/10/24; and

e. [NAME] invoice 20/11/24 for consumption 23/10/24 – 20/11/24.

31. The charges for consumption of water and wastewater for the above five invoices comes to a total of $760.04.

32. The landlord did not provided a ledger or summary recording the water invoices sent to the tenant and any payments made by the tenant towards water bills throughout the tenancy. The landlord verbally stated the tenant had made only three payments, being:

a. On 29/05/24 for $23.62;

b. On 11/06/24 for $45.00 and

c. On 29/08/24 for $120.00.

33. The landlord stated the above amounts had been applied to all water rates owed, and the outstanding amount is $715.29.

34. The tenant disputes the amount said to be owed for water rates. The tenant says she made a payment of $141.42 on 16/07/24, however the landlord said he had no record of receiving a payment on that date.

35. The burden is on the landlord to prove their claim on the balance of probabilities.

36. I acknowledge that the tenant accepts she owes payment for some water consumption charges, but the tenant was unable to say how much she accepts she owes.

37. Given the lack of evidence before me on the issue, I am unable to be satisfied to the requisite standard of the exact amount owing in water rates.

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38. The landlord has not proved their claim on the balance of probabilities, and I therefore dismiss the claim for water rates.

Is the tenant responsible for carpet cleaning and damage to the carpet?

39. The landlord seeks $6,879.33 for the cost of replacing the carpet in the sitting room, lounge, dining, study, and three bedrooms including wardrobes.1 The landlord alleges the carpet was damaged by the tenant. The landlord also seeks $200 compensation for the cost of carpet cleaning.

40. 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.

41. 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.

42. 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.

43. 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.

44. The landlord did not file evidence of the state of the carpet before the tenancy, nor did the landlord file evidence of the state of the carpet at the end of the tenancy. Without filing any photographic (or other) evidence showing the condition of the carpet, the landlord has failed to prove the damage occurred during the tenancy.

45. Although the claim for carpet replacement must fail for the above reason alone, I further note that the only evidence in support of the claim was a quote from [ADDRESS] dated 19 November 2024. The landlord could not confirm whether the owner replaced the carpet before selling the property on 16 December 2024. Therefore, even if I had been satisfied damage had occurred during the

1 Description of areas to be replaced is taken from the [ADDRESS] quote dated 19/11/24.

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tenancy, I could not be satisfied the landlord has proved the cost was actually incurred.

46. I further note that the landlord did not file any evidence as to whether an insurance claim had been made in relation to the damage.

47. As for the claim for $200 for the cost of carpet cleaning, the landlord filed no evidence in support. I am therefore not satisfied the landlord has proved the tenant failed to leave the property in a reasonably tidy and reasonably clean condition, and/or, that the tenant caused staining to the carpet that required professional cleaning. I also note that there would appear to be an inconsistency with claiming the cost of cleaning carpet that was ultimately allegedly replaced in full.

48. The claims for compensation in relation to the carpet are dismissed.

[NAME]

01 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: