Tenant ordered to pay rent arrears and damages

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[2025] NZTT 5045268

TENANCY TRIBUNAL AT WAITAKERE | TE TARAIPIUNARA RETIHANGA KI WAITĀKERE

APPLICANT: [redacted] [NAME]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] must pay Mog Limited T/A [NAME] As Agent For [NAME] $4,654.63 immediately, calculated as shown in table below.

Description Landlord Tenant Rent arrears to 28/08/24 $1,352.79 Water rates $133.24 Cleaning Rubbish removal Pest control Lawns and Garden work Lock/key replacement

$483.00 $1,162.10

$330.00 $126.50 $300.00

Repairs: Cracked glass in sliding door $240.00 Replace furnishings: Kitchen tap handle $100.00 Replace furnishings: Gas bottles x 2 $400.00 Filing fee reimbursement $27.00 Total payable by Tenant to Landlord $4,654.63

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Reasons:

1. The landlord attended the hearing. The tenant did not attend the hearing. The tenant had advised the registry they no longer lived in New Zealand. The tenant did not arrange for an agent to attend on their behalf.

2. By Tribunal order dated 16 August 2024, the tenancy was to be terminated on 25 August 2024.1 The tenant vacated the tenancy on 28 August 2025.

3. The bond has been refunded.

4. Following the end of the tenancy, the landlord has applied for rent arrears, compensation for unpaid water rates, compensation for damage, cleaning and rubbish removal, and reimbursement of the filing fee.

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 and water rates?

10. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.

1 [2024] NZTT 4832897.

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11. The rent summary provided shows the tenant last paid rent on 14 August 2024. The amount outstanding in rent as at 28 August 2024 was $1,352.79.

12. The summary of water invoices issued to the tenant throughout the tenancy shows the tenant did make some payments towards water rates, however, at the end of the tenancy a total of $133.24 remained owing.

13. The amounts ordered are proved.

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

14. 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.

15. The tenant did not leave the premises reasonably clean and tidy. The landlord filed an exit inspection report dated 28 August 2024 which showed the interior of the property was not left in a reasonably clean and tidy condition. The landlord filed an invoice dated 2 September 2024 for $966.00 for cleaning of the house and carpet cleaning.

16. The tenant is not obligated to leave the property in a pristine condition, they are only required to leave it “reasonably clean and tidy.” Tenants are also not necessarily required to get carpets professionally cleaned in order to meet that standard, though I accept that in this case there were some marks on the carpet in the bedrooms. Taking these factors into account, I award the landlord half the cost incurred to have the premises professionally cleaned, being $483.00.

17. The tenant did not leave the exterior grounds reasonably clean and tidy. The exit inspection report dated 28 August 2024 showed the lawns were not mown and there were weeds in the lawn and garden areas. The landlord filed an invoice dated 29 September 2024 for $126.50 for lawn mowing and weed spraying.

18. I award the landlord the amount claimed for garden work carried out.

19. The tenant did not remove all rubbish. The exit inspection report dated 28 August 2024 showed rubbish and furniture left throughout the interior of the house, food left in the fridge, and items in boxes and bags left on the exterior deck. The landlord filed an invoice dated 3 August 2024 for $1,162.10 for collection and removal of rubbish and items left behind by the tenant.

20. I award the landlord the amount claimed for rubbish removal.

21. The landlord also claims $330.00 for pest control. The landlord says there was a cockroach infestation at the property caused by the tenant’s leaving food to rot in the fridge. The landlord referred to a report conducted by [NAME] and

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dated 20 September 2024 (not filed or produced) that stated cockroaches were present in the kitchen and living areas and that the activity levels were high. The landlord also referred to photograph he took during the exit inspection which showed a live cockroach in one of the bedrooms. The landlord filed an invoice dated 20 September 2024 for $330.00 for German cockroach treatment.

22. I award the landlord the amount claimed for pest control.

23. The tenant did not return the keys. The landlord referred to a photo in the entry inspection report dated 5 November 2022 which recorded that two sets of keys were given to the tenants. The landlord says no keys were returned at the end of the tenancy. The landlord filed an invoice dated 13 September 2024 for $300.00 for new sets of keys for the front door, back ranchslider and two side doors.

24. I award the landlord the amount claimed for key replacement.

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. 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.

28. 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.

29. I am satisfied the landlord has proved the following damage was caused during the tenancy: cracked glass in sliding door, and missing kitchen tap handle. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.

30. The landlord provided the following invoices as proof of the cost incurred to repair the above damage:

a. An invoice dated 7 October 2024 for repair of the glass in the sliding door for $240.00.

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b. An invoice dated 18 September 2024 for replacement of the missing kitchen tap handle for $100.00.

31. The amounts ordered are proved.

32. The tenancy agreement records that the landlord did not have insurance to cover tenant’s liability for damage. The landlord’s agent confirmed he was not aware of the landlord making any insurance claim for the costs of remedying the damage. With reference to s49B(3)(b)(ii), I note that the amounts ordered for compensation for damage are less than four weeks’ rent.

33. The landlord had also sought compensation for additional damage said to have been caused by the tenant: damage to the shower floor, damaged walls in the bedrooms, and oil stains on the driveway.

34. In respect of the shower floor, the landlord sought $340.84 being half of the cost incurred to repair the water damaged shower floor. An invoice dated 12 May 2024 was filed for the full amount charged, being $ 681.74. The landlord says the damage was first noticed during an inspection March 2024, however, it could not be remedied until May due to the tenant failing to co-operate with allowing a contractor access to the premises.

35. The landlord produced photographs from the entry inspection report dated 5 November 2022 which demonstrate the condition the shower floor was in at the start of the tenancy. The landlord could not say how old the shower floor was. The current owner purchased the property in 2021.

36. While I accept that the shower floor appears to be in relatively good condition in the entry inspection report dated 5 November 2022, the tiling does not look brand new. The damage is said to have been caused by the grouting wearing away or breaking up, which allowed water to get under the tiles, lifting the tiles and also damaging the structural support beneath the floor. There is no suggestion that the tenants did anything to cause the damage, other than to use the shower.

37. Given the tile’s (unknown) age, and that it does not appear the tenant did anything to cause the tile to lift, I find the landlord has not proved the damage was caused by the tenant, or if it was, that it was more than fair wear and tear. I dismiss the claim for compensation for damage to the bathroom shower floor.

38. As for the damaged walls in the bedroom, I find the landlord has shown the tenant caused damage to the walls in bedroom 1 and bedroom 2. However, the landlord confirmed the damage has not been fixed, and the property has been re-let to new tenants for the same amount of rent. Given this, the landlord has not demonstrated they have suffered any loss and there is no basis on which to award compensation. I dismiss the claim for compensation for damage to the bedroom walls.

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39. Lastly, as for the oil stains on the driveway, the landlord was unable to produce photos to show the oil stains were not present at the start of the tenancy. Without such evidence, I am not satisfied the landlord has proved the damage was caused by the tenant. Even if that had been proven, I note that, like the bedroom walls, the landlord confirmed the driveway stains had not been remedied before the new tenants moved in and no cost had been incurred by the landlord. I dismiss the claim for compensation for removal of oil stains on the driveway.

Should the tenant reimburse the landlord’s application fee?

40. As the landlord has succeeded with the claim the tenant must reimburse the filing fee.

[NAME]

12 March 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: