Tenant Ordered to Pay Rent Arrears and Compensation for Poor Condition

__________________________________________________________________________________ 5061551 1

[2025] NZTT 5061551

TENANCY TRIBUNAL AT AUCKLAND | TE TARAIPIUNARA RETIHANGA KI TĀMAKI MAKAURAU

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: Room Ch 7, [ADDRESS], [POSTCODE], [COMPANY]

ORDER

1. [NAME] must pay [COMPANY] $4,126.28 immediately, calculated as shown in the table below:

Description Landlord Tenant Rent arrears to 10 October 2024 $2,020.71 Cleaning and rubbish removal $1,678.57 4 weeks' lost rent $1,700.00 Filing fee reimbursement $27.00 Total award $5,426.28 Bond $1,300.00 Total payable by Tenant to Landlord $4,126.28

2. The Bond Centre is to pay the bond of $1,300.00 (6416340-006) to [COMPANY] immediately.

3. The landlord’s claims that the tenant refused entry to the room in circumstances where the landlord was entitled to enter are dismissed.

Reasons:

1. [NAME] and [NAME] attended the hearing for the landlord via telephone. The

__________________________________________________________________________________ 5061551 2

tenant did not attend the hearing. I am satisfied that the tenant was served notice of the hearing. The tenant has not communicated with the Tribunal as to why he would not attend the hearing. The hearing proceeded in the tenant’s absence.

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

Relevant legal considerations:

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 that the person 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 this 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. 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 during the hearing). I must weigh this evidence to decide what is more likely.

How much is owed for rent?

6. The tenancy ended on 10 October 2024 and the landlord is seeking rent arrears up to and including the last day of the tenancy.

7. Subsection 13A of the Residential Tenancies Act 1986 (RTA) provides that every tenancy agreement must include “the rent payable”.

8. During the hearing, I pointed out that the tenancy agreement does not specify the weekly rent. [NAME] acknowledged this and said the rent section had been left blank in error.

9. The landlord has provided rent records in the form of a rent ledger and a rent increase notification which satisfies me that the agreed rent was as stated in the rent ledger.

__________________________________________________________________________________ 5061551 3

10. This claim is proved.

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

11. Section 66M(b) to (e) of the RTA provides that at the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all goods and rubbish, return all keys and security devices, and leave all chattels provided for their benefit.

12. The landlord has provided photographs showing the room at the end of the tenancy. The room was left in a disgusting condition with a significant amount of rubbish left in the room including a large number of plastic bottles full of urine. While the photographs do not show this, the landlord says, and I accept, that the tenant also left a bucket which included baby wipes with faeces on them. Saying that the tenant did not leave the room reasonably clean and tidy is an understatement.

13. The landlord has also provided an invoice showing that the work was completed including a charge for the sanitary disposal of the bodily fluids.

14. This claim is proved and the full amount of the invoice for cleaning the room and removing the rubbish is awarded.

Is the tenant responsible for the damage to the premises?

15. The landlord says that the tenant’s actions of leaving bottles of urine and other bodily fluids in the room resulted in a bad smell. The landlord says that it took 3 months to remove the smell. The landlord is claiming lost rent for the room during this time.

16. Sections 49B, 66K(2)(a), and 66L of the RTA provide that 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.

17. Section 49B(3)(a) of the RTA provides that 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).

18. Section 49B(3)(b) of the RTA provides that 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). Section 49B(3A)(a) of the RTA provides that where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage.

__________________________________________________________________________________ 5061551 4

19. Section 49B(1) of the RTA provides that 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.

20. 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.)

21. As set out above, the landlord has proved that the tenant left the room in a disgusting condition. I am satisfied that this cause the bad smell. The landlord has proved to me that the damage to the room was caused during the tenancy. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. I find that the damage was caused by the tenant and that it was intentional.

22. However, that is not the end of the matter as I also must consider if the amount claimed (three months’ rent) is reasonable. Parties to a tenancy agreement have a duty to mitigate their losses. Section 49 of the RTA provides:

Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.

23. The landlord’s obligation is to take all reasonable steps to mitigate its losses.1

24. The landlord said that it took three months for the room to be re-tenanted because:

a. Of the amount of work that was required to remove the smell;

b. The landlord was waiting for the tenant to come and collect his belongings from the room; and

c. The landlord was waiting for one of its managers to drop off replacement carpet tiles.

25. The landlord said that initially there was a thorough clean of the room. The landlord said when it became clear that the cleaning of the room had not removed the smell, it was necessary to remove the carpet tiles, clean the bare floor, repaint the room and relay new carpet tiles.

26. While I accept that this is a significant amount of work, I am not satisfied that the landlord acted reasonably to mitigate its losses. It was not necessary for the

1 [COMPANY] v [NAME] Co of London [1912] AC 673 (HL) at 689.

__________________________________________________________________________________ 5061551 5

landlord to wait four weeks for the tenant to collect his belongings. The RTA sets out the steps a landlord can take to deal with abandoned goods.2

27. I consider that the work could have been completed within four weeks and award four weeks’ rent as damages.

Did the tenant refuse the landlord access to his room when the landlord was entitled to enter?

28. Subsection 66T(1)(c) of the RTA provides that the following is an unlawful act:

… failure by a tenant of a boarding room (or any person occupying the tenant’s room with the tenant’s permission) to permit the entry by the landlord into the tenant’s room when the person entering is exercising a right of entry in accordance with section 66R:

29. The landlord claims the tenant did not allow entry to the room in circumstances when the landlord was entitled to enter. The landlord said that this occurred 3-4 times from July 2024 until the end of the tenancy.

30. The landlord has not provided me with sufficient information to reach a conclusion that the tenant refused access to the landlord (or a person authorised by the landlord) in circumstances when the landlord was entitled to enter. At the hearing the landlord was unable to provide dates of when the alleged refusals to allow the landlord (or a person authorised by the landlord) to enter the room occurred. The landlord has not provided the Tribunal with copies of the relevant notices for entry to the room to prove that the landlord did have a right to enter the room.

31. This claim is dismissed.

Filing fee:

32. The landlord has substantially succeeded with the claim. For this reason, I order reimbursement of the filing fee.

[NAME]

21 March 2025

2 See sections 62 to 62C of the RTA.

https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3283921#DLM3283921

__________________________________________________________________________________ 5061551 6

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/

__________________________________________________________________________________ 5061551 7

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: