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Evidence needed to support Tribunal claims

Landlord concerns about tenants angling for legal compensation for problems with their rental properties might be allayed a little by a recent Tenancy Tribunal ruling.

Monday, January 13th 2020, 8:00AM 1 Comment

by Miriam Bell

Wellington tenant James Nepia went to the Tribunal seeking compensation from his landlord, Oakheart Limited (trading as Quinovic Property Management), for defects to his rental property.

He claimed there were a wide range of problems with his rental. These included a leak and holes in the exterior weather, damp interior wall linings, flaking paint on windowsills, mould issues and poor maintenance of the property.

Further, Nepia said he had been raising these concerns with the landlord since early in the year and that they would not address the problem.

However, the landlord said the property is not cold, damp or mouldy and is properly insulated.

The landlord accepted that the weather boards required work to be done on them but considers that if there were significant problems with the house, the tenant could have raised them.

Assessment reports from three different inspections (with colour photographs) over the course of 2019 were provided to the Tribunal. Email correspondence between the tenant and the landlord was also provided.

However, the Tribunal adjudicator, R Woodhouse, stated that they had considerable difficulty in this case in reconciling the evidence provided by the tenant against the evidence of the landlord.

“On the one hand, the landlord has undertaken what I consider to be careful and detailed inspections at the premises. The inspection reports are very detailed, and even small departures from the landlords’ expectations are noted (for example a dirty toilet roll holder).”

However, what the landlord did not record was any significant mould in the property, dampness or holes in the weatherboards, he said.

Only one inspection report mentioned mould or mildew. It noted “slight mould” on a bedroom window, “mildew or slight dust is starting to be evident” on a wall and mildew on the ceiling of two rooms.

After noting the respective obligations of landlords and tenants under the Residential Tenancies Act, the adjudicator said that it is for the person bringing the claim to present sufficient evidence to support that claim.

“If there is not sufficient evidence to support the claim to the balance of probabilities, then it must be dismissed.”

The adjudicator ran through the list of defects alleged by the tenant and accepted there were some issues.

But, in relation to the weatherboards, they could not see that the landlord had shirked away from getting the necessary repairs done, and the emails confirmed that the landlord was wanting to work with the tenant to address any defects.

In relation to the interior of the property, the adjudicator said there is a large gap of between the evidence presented by both parties.

“When I consider that evidence, I have been unable to conclude that there is sufficient evidence to show that any material defect arises with the premise to cause a dampness or mould problem.”

None of the photographs from either party showed what is clearly mould and there was only the tenant’s statement that there was a significant problem with mould and dampness.

“But that was not apparent when the inspections when undertaken by the landlord. Again, those inspections seem to have been very comprehensive.”

For those reasons, the adjudicator said they were not persuaded that any breach of obligation on the part of the landlord had been established and dismissed the tenant’s application for compensation.

Tags: damage disputes healthy homes landlords property investment property management rental market Tenancy Tribunal tenants

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Comments from our readers

On 14 January 2020 at 5:18 pm M&M Testing said:
Very good article, the tenant needed evidence!

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AIA 4.55 2.55 2.69 2.79
ANZ 4.44 3.15 3.25 3.39
ANZ Special - 2.55 2.69 2.79
ASB Bank 4.45 2.55 2.69 2.79
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China Construction Bank Special - 2.65 2.65 2.80
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Heartland 3.95 2.89 2.97 3.39
Heartland Bank - Online - - - -
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HSBC Premier 4.49 2.45 2.60 2.65
HSBC Premier LVR > 80% - - - -
Lender Flt 1yr 2yr 3yr
HSBC Special - - - -
ICBC 3.69 2.55 2.65 2.79
Kainga Ora 4.43 3.29 3.39 3.85
Kiwibank 3.40 3.30 3.54 3.54
Kiwibank - Offset 3.40 - - -
Kiwibank Special 3.40 2.55 2.79 2.79
Liberty 5.69 - - -
Nelson Building Society 4.95 3.45 3.49 -
Pepper Essential 4.79 - - -
Resimac ▼3.39 3.45 ▼2.99 ▼3.35
SBS Bank 4.54 3.09 3.19 3.49
Lender Flt 1yr 2yr 3yr
SBS Bank Special - 2.59 2.69 2.99
The Co-operative Bank - Owner Occ 4.40 2.55 2.69 2.99
The Co-operative Bank - Standard 4.40 3.05 3.19 3.49
TSB Bank 5.34 3.35 3.49 3.79
TSB Special 4.54 2.55 2.69 2.99
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Westpac - Offset 4.59 - - -
Westpac Special - 2.55 2.69 2.79
Median 4.55 3.12 3.19 3.17

Last updated: 4 August 2020 11:33am

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