Tenancy Tribunal Rejects Landlord's Claim for Flooring Damage

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[2025] NZTT 5045049, 4948873

TENANCY TRIBUNAL - Waitakere | Waitākere

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] to pay [NAME] and [NAME] $171.39 from the bond, calculated as shown in table below.

2. The Bond Centre is to pay the bond of $2,200.00 immediately apportioned as follows:

[NAME] and [NAME]: $171.39

[NAME]: $2,028.61

Description Landlord Tenant Rent arrears to May 28 2023 $325.71 Compensation: Overpaid rent $1,011.42 Cleaning: drapes $657.00 Lock/key replacement $200.10 Total award $1,182.81 $1,011.42 Net award $171.39 Bond $171.39 $2,028.61

3. The tenants’ and the landlord’s other claims are dismissed.

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Reasons:

1. Both parties attended the hearing.

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.

Landlord’s claims

Consent claims

6. The parties agree that at the end of the tenancy the tenant owed $325.71 for unpaid rent.

7. This amount is ordered by consent.

8. The landlord also sought $200.10 in relation to keys and locks for the property, and $164.25 for cleaning drapes. The tenant did not dispute these amounts.

9. These amounts are ordered by consent.

Is the tenant responsible for the damage to the premises?

10. 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

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damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

11. 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.

12. 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.

Damage to the rimu/ matai flooring

13. The premises have a high quality native rimu and matai polished wood floor. The landlord said they bought the property some time around the year 2000 and undertook an extensive renovation in 2013 when the floors were installed as new floors. The landlords lived in the premises from then until 2021 with their two small dogs.

14. The landlord then rented the property to a different tenant for approximately one year from 2021 until early in 2022 when these tenants signed a tenancy agreement for the property.

15. The first tenants also had a dog. The landlord stated the dog weighed approximately twenty kilograms. The tenants for this application stated the dog was a pit bull terrier. I consider this to be a medium to large dog.

16. The tenants for this application also had two dogs. The landlord consented to the dogs as part of the tenancy. However the landlord made submissions about how the dogs ran around inside the house and spent more time inside the house than she (the landlord) had expected they would. The landlord had concerns about the dogs’ behaviour.

17. The landlord stated that by the end of the tenancy the floors were heavily

18. scratched, and in her opinion needed re-polishing. The landlord sought several quotes and eventually paid $6,248.72 for the work.

19. The landlord accepted that the floors had marks including scratches from the dogs that had been there before these tenants, but stated that the floors were far more heavily marked by these tenants’ dogs than at the beginning of the tenancy.

20. The landlord wants to be compensated for the cost of re-polishing the floor.

21. The tenants do not accept that the damage to the floor caused by their dogs goes beyond fair wear and tear. In the alternative they do not accept that the

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damage was caused solely by their dogs. They point to the accepted facts that the previous tenants had a dog at the premises for a year, and the landlord before that lived at the premises with a dog. They also point to the floors being ten years old at the end of the tenancy.

22. The landlord provided photographs showing the furnished property when they were living there, and photographs showing what I accept to be paw-scratch marks in the floor, and some that show what I believe to be furniture damage in the floor.

23. The photographs of the property when the landlord was living there show the property to be decorated to, and presented in an extremely high standard. This is consistent with comments made by [NAME] that [NAME] has extremely high standards.

24. I do not find the photographs very helpful. They show small areas of moderate or light damage, not the large areas of extensive damage that the landlords are claiming. Furthermore there is no way to compare beginning of tenancy with end of tenancy. That is, there are no like-for-like photographs: the end of tenancy photographs provided are close-up photographs of areas across two to six floorboards. It would be usual for claims of this type to include start-of- tenancy photographs and equivalent end-of-tenancy photographs.

25. A polished wood floor does not last forever. It is to be expected that an owner will treat their own property, particularly when it is new, with a kinder touch than a tenant. It is also to be expected that a brand-new floor will be treated with more care than a floor that is already nine years old and has had the cumulative effect of other dogs and furniture marking it. That is to say, reasonable wear and tear will not be the same with a brand-new floor, as with an older floor.

26. I accept that it is possible, maybe even likely the landlord has suffered some loss due to the tenant’s dogs marking the floor. But I have no information that assists me in determining accurately the extent of that loss. In particular I would have liked to have seen photographs of the same floor before and after the tenancy. For a floor that has had ten years of use, including across two tenancies with dogs, it is inevitable there will be wear and tear. The landlord has not satisfied me on the balance of probabilities that all or any of the damage shown in the photographs was caused by these tenants’ dogs.

27. This claim is not proved.

Tenants’ claims

Unlawful termination

28. The tenancy began on 2 April 2022 on a fixed one-year term. At the end of this term the tenancy rolled over into a periodic tenancy. On 7 April 2023 the

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landlord gave notice to the tenants based due to the landlord wanting to move back into the property.

29. Under the Residential Tenancies Act, 1986 (the “RTA”) as it was at that time, a landlord could terminate a periodic tenancy by giving at least 63 days’ notice if the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family; See section 51(1)(a).

30. At the time, there was some discussion and negotiation between the parties and the tenancy ended on 28 May 2023, 44 days after the notice was given. Neither party suggested that this shorter notice period was anything other than by consent of both of the parties, and I therefore determine this shorter notice period was by consent of the parties.

31. The tenants’ grievance on this point is that notwithstanding the consent to end the tenancy earlier, the landlord or a member of the landlord’s family never moved back into the premises and instead the landlord sold the property in August 2023.

32. Under the RTA at that time, a landlord was required to provide 90 days’ notice to terminate a tenancy if they wished to put it on the market for sale. See section 51(2)(a).

33. The tenant believes that the landlord never had any intention to move back into the premises but was taking advantage of a shorter notice period requirement for that provision than for the landlord selling the property.

34. The tenant stated that evidence in support of this was that the landlord advised that before discussions regarding the tenancy were broached on 7 April 2023, the landlord advised that a [NAME] maintenance person would attend the property. As it happened the supposed [NAME] maintenance person was someone the tenant knew by sight from her local gym, and on investigation he turned out to be a [NAME] estate agent.

35. The tenant stated that at the end of the tenancy they were advised that a tradesman would be coming to look at the floor, and the same [NAME] estate agent turned up again.

36. The landlord denied they intended to mislead the tenant. The landlord stated that this [NAME] estate agent was also a property manager who they engaged to relocate a tenant living in a flat attached to the main house. They also stated that the date this happened was after they had decided to move back into the property.

37. The landlord stated that they listed the property for sale on 12 June 2023. This was two weeks after the tenant’s tenancy ended.

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38. The landlord also stated that they moved out of their rented premises on 27 August 2023. This is more than four and a half months after they gave notice to their tenants that they were going to move back into the property, and three months after the date that tenants moved out of the property.

39. When I consider all of the relevant information presented on this claim, I have little doubt that the landlord was not wholly transparent and honest with the tenant. It is not disputed that the person who the tenants believe they were told was a [NAME], was in fact a [NAME] estate agent. Given he was the [NAME] estate agent who eventually sold the premises, I consider it likely that he was providing information regarding the sale of the property when he attended the property around April 2023. The landlord disputed that they ever described him as a [NAME], but I do not consider that material: He was a [NAME] estate agent attending the premises around April 2023, and but for the tenant recognising him from her gym, his presence or purpose may well have gone under the radar.

40. I am satisfied on the balance of probabilities that the landlord gave the tenants a shorter 63 day notice to terminate the tenancy under section 51(1)(a) of the RTA (the grounds being that they were going to move back into the property), rather than a 90 day notice to terminate the tenancy under section 51(2)(a) of the RTA (the grounds being that they were going to sell the property).

41. When I consider whether damages are appropriate, I note that the tenant stated that their main concern was that they wanted the landlord to be accountable for the extreme disappointment, emotional turmoil and expense that they experienced as a result of the landlord’s actions in terminating the tenancy.

42. I also note that although an incorrect notice period was used, the correct notice period would have allowed the tenants a further 27 days, and in any event the tenants negotiated a notice period that was 19 days even shorter than what they were entitled to under the notice period that the landlord gave.

43. Regrettably I consider the tenants would have likely had a similar experience even if the correct notice period had been given. They were wanting a long-term tenancy, and their own family situation with pets made it difficult to find another property.

44. In all of these circumstances, I consider the landlord’s breach to be of a technical nature (a correct notice period was available to them, and the outcome would have been just as distressing for the tenants if the correct notice period had been used, and the tenants accepted an even shorter notice period in any case), and I decline to make an award for damages or exemplary damages against the landlord.

Breach of quiet enjoyment

45. The tenants claim the landlord breached their quiet enjoyment.

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46. A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.

47. Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

48. Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". [NAME] v [NAME], CIV-2009-[PHONE], DC Hamilton, 26 February 2010.

49. The tenants claim that during the tenancy the landlord often conducted inspections and maintenance on the property, and the regularity of these visits was an imposition to them. The tenants did not provide dates for the visits.

50. The landlord stated that every visit was for a legitimate reason and for every visit a correct notice was given.

51. The tenants accepted this was correct.

52. Despite the inconvenience to the tenants, the landlord did not breach the RTA in any way in visiting the property. I cannot find the tenant’s claim proved.

Unlawful rent increase

53. The tenant claims that the landlord unlawfully increased the rent.

54. Under the RTA, the rent must not be increased within 12 months after the date of the commencement of the tenancy. See section 24(1)(d).

55. The tenancy began on 2 April 2022, which means no rent increase could be implemented by the landlord prior to 1 April 2023.

56. Following an inspection in November 2022, the landlord emailed the tenant an inspection report that suggested a rent increase, as follows:

“We appreciate that it is difficult to find time to prioritise maintenance of the grounds a gardens, however this was a core requirement in letting a property of this type. It is very disappointing that this has not been done. We suggest that going forward we increase the rent by $40 per week, and that we employ someone to mow the lawns and maintain the grounds to an acceptable standard. Please advise if this would be acceptable to you, we would commence this service from 1 December 2022.”

57. The parties agreed that the rent increase took effect from 2 December 2022.

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58. There were other lawful means available to the landlord to address the issue as they saw it, but this wasn’t one of them; this was a breach of section 24(1)(d) of the RTA.

59. The tenancy continued until 28 May 2023 which I calculate to be a further 25 weeks and two days. At a rate of $40.00 per week pro rata, I calculate this to be $1,011.42 in rental overpayment, which I order to be repaid by the landlord to the tenant.

60. The claim and amounts are proved.

Filing fee

61. Because both parties have been partially successful with their claims, I do not order reimbursement of the filing fee.

[NAME]

25 February 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: