Tenant Liable for Rent Arrears and Water Charges

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[2025] NZTT 5100272, 5157413

TENANCY TRIBUNAL AT MANUKAU | TE TARAIPIUNARA RETIHANGA KI MANUKAU

APPLICANT / RESPONDENT:

[redacted]

Tenant

APPLICANT / RESPONDENT:

[redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] to pay [COMPANY] $650.43 from the bond, calculated as shown in table below:

2. The [COMPANY] is to pay the bond of $2,960.00 immediately apportioned as follows:

[COMPANY]: $650.43

[NAME]: $2,309.57

REASONS

1. The Tribunal must consider an application filed by both the tenant and landlord. The tenant seeks a return of her bond, whereas the landlord’s claim is for a number of charges at the end of the tenancy.

Description Landlord Tenant Rent arrears $422.86 Water rates $127.57 Blocked waste disposal $100.00 Total award $650.43 Bond $650.43 $2,309.57

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2. Both parties appeared at the hearing.

BACKGROUND

3. The tenancy commenced on 23 May 2022, and ended on 13 February 2024, so was a tenancy nearing two years duration. The premises were new when the tenancy commenced.

4. The tenancy ended by notice from the tenant.

5. At the end of the tenancy there is a dispute as to liability for various matters including rent, water and claimed damage to the premises.

CLAIMS TO BE CONSIDERED

6. At the hearing, the landlord confirmed their only claims are as follows:

a. Rent arrears.

b. Water charges.

c. Paint damages.

d. Waste disposal replacement.

e. Smoke alarm replacement.

7. While the landlord had filed more extensive claims with the Tribunal originally, the further claims have been withdrawn, it is only those five matters that the landlord is now seeking orders for.

8. The tenant confirmed that she is simply seeking to have her bond refunded.

RELEVANT LEGAL CONSIDERATIONS

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

10.With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.

11.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

https://www.legislation.govt.nz/act/public/1986/0120/latest/DLM94278.html?src=qs

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a fractionally 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.

12.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.

13.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.

ANALYSIS

Claim 1 – Rent arrears

14.The landlord states the tenants vacated the premises on 13 February 2024, and at that time owed $422.86.

15. In response, the tenant states that she believes she was paying a higher amount, but following discussion at the hearing today, it appears those additional payments were water payments, which is a separate claim below.

16.The tenant also states that she moved out of the premises on the 10th, but there was no communication from the landlord about returning the keys, so took the keys and dropped them off on 13 February 2025.

17.The landlord says that rent was charged to 13 February 2025 when possession of the premises were returned to the landlord. The landlord notes there was a drop box at their office for keys to be returned.

Analysis

18. I begin by recording that the tenant has not identified any payments of rent she made which the landlord has not accounted for. Otherwise the landlord has produced a standard rent ledger, and I have no reason to consider the accounting of the rent is incorrect.

19. I agree that the rent ledger shows the rent arrears as of 13 February 2024 were $422.86.

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20.While I accept the tenant moved out of the premises on 10 February 2024, the tenant accepts that she had the security devices like the keys, swipe card and remote, and those were not returned until 13 February 2024. For practical purposes I consider the tenant had possession of the premises until 13 February 2024, and she must therefore be liable for the payment of rent until possession was returned to the landlord.

21.While I accept the communication between the parties may have been lacking about the return of the keys, the Residential Tenancies Act 1986 (RTA) does not place any requirement on the landlord for arranging the keys to be returned, rather the obligation is on the tenant to return the keys.

22. I find the tenant is liable for rent arrears until 13 February 2024 to the sum of $422.86 and that is ordered in full.

Claim 2 – Water charges

23.The landlord’s position is that the tenant owes the sum of $127.57 in water charges.

24.The tenant agrees she owes these charges.

Analysis

25.The landlord claims $127.57 in water rates, and the tenant agrees that she owes that amount. So this claim is ordered by consent.

Claim 3 – Paint damage

26.The landlord states this was a brand-new [NAME], and this was the first tenancy. The landlord’s position is that the tenants have damaged the walls, and the landlord seeks compensation for the damage and pinholes on the walls. The landlord seeks compensation of $1,425.00 with reference to an invoice from [COMPANY], which records that 14 walls needed plastering and painting.

27. In response, [NAME] states that the amounts of the claimed are all different. Despite that, the tenant does not consider she should be liable for the charges to paint 14 walls, disputing that she caused damage to that extent.

Analysis

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28.Where a landlord claims compensation for damage caused by a tenant, the landlord must first prove the damage occurred during the tenancy, and that it 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.

29.Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.

30.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.

31.The premises were brand new at the start of the tenancy. I accept that the damage shown in the photographs at the end of the tenancy is very likely to have occurred during the tenancy, and the tenant accepts that is the case. Therefore the landlord has established that the damage occurred during the tenancy.

32.The landlord must then establish that the damage is more than fair wear and tear, and for the following reasons I find the landlord has not establied that situation.

33. I record at this time that the evidence does support multiple area of minor damage or marking on walls. The invoice from the painter indicates this is over 14 walls, and I accept that is probably the case.

34.Fair wear and tear is simply low level damage that occurs as a consequence of a person living in the dwelling. I note as an example, the Tribunals decision in Shama and Shama v Tenant [2021] NZTT 4294819 and 4293319. In that case, Adjudicator Henwood discussed the concept of fair wear and tear as follows:

The tenant, in turn, claims that the damage is fair wear and tear, which is an exception to tenant liability: section 49A(2). Fair wear and tear has been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant. See discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403.

35. In this case, I consider the photographs represent the sort of low-level damage that would be unsurprising from a person or a family living in a tenancy. It is that sort of damage that the rent is intended to cover.

36.My impression is that the landlord was seeking to have the premises returned to a brand new state, as indicated in an email to the tenant from 15 February 2024 where the landlord advised:

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As the [NAME] was given in a brand new condition, we will have to send the tradesman to restore the [NAME] in the same condition.

37.That is not the standard the tenant needs to return the premises. The premises do not need to be returned in precisely the same state they were received (brand new), because that would cut across the expectation that fair wear and tear be excluded from the tenant’s liability.

38.Because I have found the damage to be fair wear and tear, then I would conclude the tenant is not liable for the remediation costs.

39.However even if I were wrong in that assessment, I would not of found the damage to be careless or intentional damage, such a finding would be necessary to make an order against the tenant.

40.This claim is dismissed.

Claim 4 – Replacement waste disposal unit

41.The landlord states that the waste disposal was blocked twice, and when the premises were returned to the landlord, it did not work.

42.The tenant agrees that there was a blockage on the waste disposal, stating that there have been multiple problems with this unit and so have the neighbours with their unit. The tenant agrees that normally if the unit is blocked they would just unblock it, but on this occasion, they did not unblock it.

43.The landlord states that the circuit was blown and that is why the unit was replaced.

Analysis

44.Again, the first matter, to be considered as whether the damage occurred during the tenancy, and whether it was fair wear and tear.

45. In this case, it is difficult for me to answer either question, because there is no evidence available from a suitably qualified person, confirming that the waste disposal unit was damaged. The only evidence available is the oral evidence from the [NAME] manager, that the circuit for the waste disposal was blown. But without properly knowing what was in fact, wrong with the waste disposal unit, I am not able to reach any conclusion as to whether the unit required replacement because it was damaged by the tenant, or because there was a fault with the unit.

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46.This claim cannot succeed because the landlord has not established those first two matters.

47.However, the tenant has agreed that when the premises were returned to the landlord, the waste disposal unit was blocked, and that normally they would have unblocked it, but they did not on this occasion. It is reasonable that the tenant contribute towards the plumbing costs, to take into account any work necessary to remedy the blocked unit. In the absence of more specific charging from the plumber, I consider an award of $100 would be a reasonable contribution on the basis of the blockage.

Claim 5 – Smoke alarm replacement.

48.The landlord states that the tenants had taken down the smoke alarms, and when the premises were returned, one of the smoke alarms was missing.

49.However, following the discussion at the hearing, the landlord accepted that there was insufficient evidence to establish a missing smoke alarm, so this claim was withdrawn.

BOND

50.The only claim from the tenant related to the bond, and as I explained at the hearing, the bond gets released based on the outcome from the landlords claims. Otherwise the parties agree that the bond held in the [COMPANY] was $2960.

[NAME] 05 May 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 [NAME] 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 [NAME].

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].