Tenant wins bond and filing fee, landlord's claims dismissed

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[2025] NZTT 5111251, 5161152

TENANCY TRIBUNAL - Manukau

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] and [NAME] must pay [NAME] and [NAME] $1,727.00 immediately, calculated as shown in the table below.

Description Landlord Tenant Repairs $100.00 Bond (held by landlord) $1,800.00 Filing fee reimbursement $27.00 Total award $100.00 $1,827.00 Net award $1,727.00 Total payable by Landlord to Tenant $1,727.00

Reasons:

1. Both parties attended the hearing yesterday, 11 February 2025.

Background

2. The tenancy address comprises a 2-bedroom minor dwelling with its own entrance, kitchen, and bathroom.

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3. The parties signed a “sharing agreement” for a fixed term tenancy from 9 June 2023 to 9 June 2024. The agreement also stated that it could be terminated by 21 days’ notice by either party.

4. The rent was $600.00 per week and a bond of $1,800.00 was paid. The bond was not lodged at the Bond Centre. The tenancy included an on-site car parking space.

5. On 13 January 2024 the landlord gave notice of a rent increase to $630.00 from 15 February 2024. The tenant vacated the premises on 7 February 2024.

6. The tenant applied for refund of the bond and general damages on 18 December 2024.

7. Prior to the hearing, the landlords had not brought an application to recover the bond (as required pursuant to section 22B of the Residential Tenancies Act 1986 (the Act)) but claimed $1,800.00 for the cost of repairs to the premises. The landlords chose to file a cross-application after the hearing (5161152). This will have to be determined separately.

Evidence from the parties

8. The tenant said (in brief summary):

• Before the viewing he was told the weekly rent was $580.00. After the viewing and prior to signing the agreement, the tenant agreed to pay $600.00 per week when the landlord said other prospective tenants were offering to pay more.

• In January 2024 the landlord told him (by text message) that they were increasing the rent to $650.00 from 15 February 2024. The tenants advised that they could not afford this. The landlord then proposed that the rent increase to $630.00 but with off-street parking. If the tenant wanted to continue parking on the driveway, they would need to pay an extra $20.00 per week.

• The tenant agreed to pay increased rent of $630.00 but with off-street parking. He also requested a 1-year contract extension to prevent further rent increases. The landlord declined to provide a new contract. As a result, the tenant said he would continue to pay $600.00.

• After he objected to paying $650.00 per week the landlord put pressure on him to leave by blocking his parking space and by turning off the water and power. The landlord gave him 60 days’ notice to vacate because their relatives were coming from overseas.

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9. The landlords said (in summary):

• The property was advertised at $580.00 with off-street parking. On-site parking was not included, and the tenant was aware of this at the viewing. The tenant requested on-site parking and the landlord offered to include this at a rent of $600.00.

• The landlords were facing increased living costs and needed to increase the rent. It was agreed to increase the rent to $630.00 including the on- site car park. The landlord referred to emails dated 25 January 2024 to show that the tenant agreed to pay $630.00 and did not insist on a 12- month contract extension because they might be going overseas. The landlords’ email of 25 January 2024 noted: “There won’t be any alterations made to the contract we signed”.

• The tenants left without giving the notice required by the tenancy agreement.

• They did not block the tenant’s parking space or turn off the power or water.

• They did not give the tenant notice to leave. They told the tenant that a [NAME] might be coming from overseas to live in the premises, but if so, they would give the tenant 3-months’ advance notice.

Analysis

Tenants’ Application

10. The landlords did not use the standard template for residential tenancy agreements available from Tenancy Services. Therefore the “sharing agreement” they adopted did not include mandatory information required by the Act. I encourage the landlords to seek advice from Tenancy Services if they intend renting the premises again in future.

11. The bond was not lodged, and there was a dispute between the parties about the reasons for this. The landlord said the tenant had requested that the bond not be lodged so it was easier when they moved out. It is unnecessary to make any findings on this issue because the tenant has made no claim in respect of the non-lodgement.

12. There was much contention about the changes to the rent and why the tenant left. There was only one rent increase during the tenancy. The text messages in February 2024 mention that the tenant was moving overseas, and the landlord suggested this was the reason the tenant left, not the rent increase. The tenant insisted that he left because of the rent increase, pressure from the landlord, and their unwillingness to provide an amended contract. It is difficult to unravel these competing allegations.

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13. I am not satisfied that the landlords pressured the tenants to leave or interfered with the provision of utilities or parking. They denied doing so and the contemporaneous evidence does not show this being raised as a concern. In the end, the Tribunal is faced with competing assertions unsupported by cogent evidence. It follows that the tenant cannot recover general damages for distress and anxiety which he says was caused by having to find new rental premises and pay an additional bond.

14. Although the “sharing agreement” included a 21-day notice provision, in my view the document must be treated as creating a fixed-term tenancy. The agreement stated that the tenancy was for a fixed term and would become periodic after the fixed term. To the extent the contract is ambiguous, it must be interpreted against the interests of the landlord because it was their document (the contra proferentem rule). It follows that the landlords could not unilaterally increase the rent unless the agreement allowed this, and it did not (section 24 of the Act). Even under a periodic tenancy, the rent cannot be increased until 12 months after the start of a tenancy.

15. Again, it is not necessary to take this issue any further, because the tenant has not applied for a refund of any overpaid rent. The tenant may have continued to pay $600.00 because he left before the rent increase took effect. Further, the evidence suggests that the tenant agreed to pay $630.00. It seems that the tenant may have been willing to accept the increase initially, but then made his agreement subject to a new 1-year contract. Section 24 does not preclude landlords and tenants from agreeing a rent increase and it is not clear the tenant has suffered any loss.

16. I would also add that it is unnecessary to determine whether the tenant breached the contract by leaving before expiry of the fixed term. Both parties caused the other uncertainty by talking about potential moves overseas or relatives possibly visiting. This overlooks the fact they had agreed to a fixed term tenancy. There are limited grounds on which the Tribunal can release parties from their obligations under fixed term tenancies. In this case, the keys were returned by the tenant, and the landlord performed an exit inspection. It may be that the parties should be taken to have agreed to end the tenancy.

Landlords’ Claims

17. The landlords claim the tenant did not leave the premises reasonably clean and tidy and caused damage. There was no invoice or quotation supporting the claim for cleaning costs, which therefore cannot succeed. I make no findings as to whether the premises were reasonably clean at the end of the tenancy.

18. 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

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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.

19. 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 4 weeks' rent. The insurance excess was $2,500.00.

20. Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to 4 weeks' rent. 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.

21. The landlord said there was damage to the walls in both bedrooms and the living room. Their photographs show various patches on the bedroom walls, together with some scrape marks and dents in the lounge. The landlords said the tenant had put up pictures or other ornaments, which had damaged the walls and not been repaired professionally. I note that several rectangular brackets had been fixed to the walls and not removed. The tenant accepted that he patched several walls.

22. The tenant said the damage was fair wear and tear. Some of the scrapes and marks may fall within that category. However, I cannot accept that a wall which needs a patch repair is fair wear and tear. Such damage is not an ordinary incident of reasonable use of residential premises. The landlords said the tenant did not have permission to put up the photographs. Even if permission was given, the tenant would have been liable to make good the damage on removal (see sections 42(6) and 42B(4) of the Act). I find the tenants liable for the damage.

23. The landlord said the “quotation” (described on its face as an invoice dated 24 March 2029) was arrived at independently and the tradesperson was not told the bond was $1,800.00. The quotation does not provide any description of the work to be provided or any itemisation of the cost. It only provides a single GST- inclusive price of $1,800.00. I find the document unreliable.

24. In the absence of satisfactory evidence about the cost of repairs I consider it is appropriate to award nominal damages of $100.00. If the landlords continue with their cross-application the Tribunal can reconsider the cost of repairs on presentation of properly itemised quotations.

Filing fee

25. The tenant has succeeded in recovering the bond. The landlords ought to have paid $27.00 to bring their own application before the Tribunal. If they had done so, and the outcome was an order to split the bond, this would typically result in an order that the parties bear their own costs.

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26. In this case, by contrast, the landlords failed to make the required application and the Tribunal could have required them to do so before considering their claims. I award the tenants the filing fee.

Procedural note

27. After the hearing, the landlords provided insurance information and copies of documents viewed during the hearing, as requested. The tenant provided videos and a short, written response. I have reviewed the further information provided.

[NAME]

12 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: