What was Tenancy Tribunal case 4314885 about?

The tribunal order states: The Tribunal orders suppression of the Tenant names and identifying details.

How much money was awarded in case 4314885?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4314885?

The primary dispute was Rent arrears. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4314885?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9146605-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4314885 about?

The tribunal order states: The Tribunal orders suppression of the Tenant names and identifying details.

How much money was awarded in case 4314885?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4314885?

The primary dispute was Rent arrears. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4314885?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9146605-Tribunal_Order_Redacted.pdf.

Unit/Flat 18F, 15 Whitaker Place, Grafton, Auckland Tenancy Tribunal Case 4314885 — Rent arrears

Order

The Tribunal orders suppression of the Tenant names and identifying details.

Reasons

This hearing was conducted remotely due to the Auckland region being under COVID Alert Level 4 restrictions.
[Tenant 1] as tenant attended the hearing and property manager Katrina Jiang attended on behalf of the landlord. Attempts were made to call the other tenant [Tenant 2] but the call went straight to voicemail.
I therefore proceeded to hear the matter in her absence.
The tenant has applied for refund of the bond and refund of the filing fee following the end of the tenancy. He says that the cleaning fee was not agreed to and he is uncertain regarding the deductions for rent arrears because the other tenant was responsible for making payments to the landlord.
[Tenant 1’s] evidence at the hearing was largely to reiterate the comprehensive written timeline of relevant events and communications. This timeline was not challenged by the landlord and was of assistance to the Tribunal.
The landlord has made a cross-application for compensation for cleaning costs following the end of the tenancy. The landlord’s evidence was largely comprised of the cleaning invoice as well as her oral evidence which is discussed further below. Background to this Dispute
This tenancy initially commenced with two other tenants. As each tenant left the property the tenancy agreement was varied. Finally, the tenancy was held jointly between the two named tenants from 18 January 2021 to 19 April 2021.
On the day the tenancy ended each of the two tenants pre-signed and dated the bond refund form. This was not a consent for any deductions to the bond, which were at that time unknown, but rather to facilitate easy refund of the bond once agreement had been reached.
After the final inspection, the landlord notified each tenant of deductions that she intended to make from the bond. They included rent arrears of 1225.71 and $379.50 for cleaning costs.
The landlord received no response from [Tenant 2] however [Tenant 1] made it very clear to the landlord that he disputed those deductions, most particularly he disputed the deduction for cleaning costs.
Despite knowing about that dispute, the landlord went ahead and filled out the bond refund form and submitted it to the Bond Centre in June, relying on the tenants’ earlier signatures. This resulted in the entire bond of $1560.00 being refunded to the landlord. At the hearing the landlord said that she knew one of the tenants was disputing the bond refund however she said that because it had been several months since the tenancy ended she wanted to just finalise things and that is the reason she submitted the form.
This is completely unacceptable.
The bond is the tenants’ money. It can only be refunded to the landlord by agreement of the tenants or by order of the Tribunal. Although a blank form had been signed by both tenants, this was clearly subject to later agreement between the landlord and tenants once the final inspection had been undertaken. No such agreement was reached. Indeed, there was clear evidence that [tenant 1] was disputing the deductions, which was acknowledged by the landlord.
In this situation, the proper course was for the landlord to make an application to the Tribunal for orders as to the appropriate disposition of the bond. The landlord may not unilaterally lodge the bond refund form without consent of the tenants.
Concerningly, the landlord also then sent the balance of what she thought was owed for cleaning costs (even though she knew they were disputed) to a debt collection agency who then pursued the tenants for outstanding debt. This may have affected their credit rating. I have therefore made a declaration confirming that these enforcement proceedings should not have been brought against him. Exemplary Damages
Section 137 of the Residential Tenancies Act provides that: 137 Prohibited transactions (1) No person shall— (a) ... (b) enter into any transaction or make any contract or arrangement, whether orally or in writing, or do anything, for the purpose of or having the effect of, in any way, whether directly or indirectly, defeating, evading, or preventing the operation of any of the provisions of this Act (emphasis added).
Breaching this obligation is an unlawful act for which exemplary damages may be awarded, up to a maximum of $1,800.00. See section 137(2) and Schedule 1A Residential Tenancies Act 1986.
By having the tenants pre-sign the bond refund form ahead of any agreement as to deductions and then submitting that form to the bond centre while knowing that the deductions were disputed, I find that the landlord has breached s137(1)(b). I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
In this case I find as follows.
The intent of the landlord in this case was to obtain payment of the full bond in her favour, despite there being no consent to that course of action from the tenants – 109(3)(a).
The effect of the unlawful act was to deprive the tenants of money that was lawfully theirs. In addition, the further action of pursuing the tenants for debt recovery may have had an adverse effect on their credit rating – 109(3)(b).
The interest the landlord had in finality, while understandable, do not justify what occurred; the landlord’s lawful course of action was to apply to the Tribunal for an order regarding the bond. The interests of the tenants were self-evidently adversely affected in not having their monies returned to them – 109(3)(c).
The public interest in my view warrants condemnation of this unlawful act. The bond system relies on honesty from both landlords and tenants and this type of act undermines that system – 109(3)(d).
I therefore find that it would be just to require the landlord to pay a sum in the nature of exemplary damages, and order accordingly. The maximum that may be awarded is $1800. I am not aware that the landlord has any previous breaches of this type and consider this to be a mid to low level act of its type. I therefore award payment of $750 to the tenants.

Were there rent arrears at the end of the tenancy?

The tenancy ended on 19 April 2021.
During the course of the hearing I requested the landlord provide a full rent summary to determine whether any arrears were owing which might justify a deduction from the bond.
The landlord sent the rent summary following the hearing. It shows that the last rent payment was made on 31 March 2021 and that at the end of the tenancy there were rent arrears of $1225.71.
[Tenant 1] said that he made regular rent payments and in fact had over-paid his rent because he had inadvertently forgotten to cancel his automatic payment at the end of the tenancy.
[Tenant 1] said he was making his rent payments not to Impression Real Estate directly but to [Tenant 2], who was then forwarding the entire rent payment.
Following the hearing, [Tenant 1] sent through his bank statements to confirm the payments he made as well as text messages between himself and [Tenant 2] regarding her failure to forward the final rent payments.
I have sighted those statements and accept entirely that [Tenant 1] paid his portion of the rent regularly as claimed and had not missed any payments. I also accept he paid more than was required to [Tenant 2] in his final payment on 15 April 2021.
Unfortunately, as I explained to him, both tenants are jointly and severally liable for rent under the tenancy agreement. I advised him that in future if his name is on the tenancy agreement it may be preferable to pay rent directly to the landlord rather than to another flatmate, although of course I accept that these type of arrangements are rather common in flatting situations.
I therefore find that both [Tenant 1] and [Tenant 2] are liable for arrears in the amount of $1225.71.
Normally, I would order this amount as a deduction from the bond, but as the bond has already been paid out no further payment is required.
I leave it to [Tenant 1] to pursue other avenues to recover the monies he paid to [Tenant 2] which have not been forwarded to the landlord.

Can the landlord charge for cleaning costs?

The landlord claims that the cleaning fee of $379.50 is the responsibility of the tenants and therefore an appropriate deduction was made from the bond. The landlord further claims that as the fee was greater than the amount claimable from the bond, a further $196.50 is owing by the tenants.
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.
Whether a premise is reasonably clean and tidy is of course a matter of judgement. People can have vastly differing standards of cleanliness and it is not the case that a tenant must leave a premise in perfect condition, only in reasonable condition.
Likewise, a tenant is not required to leave premises in such a condition that a new tenant can move in straight away. A realistic landlord’s business plan should, therefore, make allowances for this. A tenancy change-over is often used as an opportunity to carry out ongoing maintenance and repairs which are not the responsibility of the tenant. Provided the premises were left reasonably clean and tidy, any cleaning undertaken over and above this is not the tenant’s responsibility and is part of the overall maintenance of the property.
The landlord says that the premises had just been repainted and renovated at the start of the original tenancy and points to things like the mattresses on the beds which needed cleaning and marks on the floor. She says the property was not left in its original condition.
The tenant says that the property was cleaned, and keys returned to the landlord on 19 April 2021 on the day he vacated the property.
As I explained to the landlord, the law does not require that a property be left in its original condition. Normal wear and tear will inevitably occur, and this is not the responsibility of the tenants.
I have carefully reviewed the inspection reports and photographs provided.
I am satisfied that the property has been left reasonably clean and tidy.
I accept that the cleaning may not have met the landlord’s high expectations.
However, as noted above, it is not a requirement of the Residential Tenancies Act that the tenant clean a property to a perfect standard or even to a high standard. The Act simply requires that it be reasonably clean and tidy. Anything over and above that is part of the landlord’s cost of doing business and is the landlord’s responsibility.
Accordingly, I find that this was not a justified deduction from the bond and order the landlord to repay $334.29 to the tenants which was erroneously deducted from the bond.
I also confirm that the balance of the cleaning cost ($196.50) is not owed by the tenants. Outcome
The tenant has proved their claim for partial refund of the bond on the balance of probabilities.
The landlord has not proved their claim for the balance of cleaning costs. The landlord’s claim is therefore dismissed.
For completeness, I also record that after the hearing the landlord sent invoices for what was claimed to be unpaid water bills.
As these did not form part of the claim that was filed and were not raised in the hearing, I am unable to consider those.
As the tenant has been substantially successful in his application (#4314850) I award the filing fee to the tenant.
As the landlord has not been successful in their cross-application (#4314885) costs will lie where they fall. J R Smith 22 September 2021

Tenancy Tribunal case 4314885 — Rent arrears at Unit/Flat 18F, 15 Whitaker Place, Grafton, Auckland

At a glance

Tenancy Tribunal case 4314885 — Rent arrears at Unit/Flat 18F, 15 Whitaker Place, Grafton, Auckland

At a glance

Claims & awards

Order

Reasons

Were there rent arrears at the end of the tenancy?

Can the landlord charge for cleaning costs?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Were there rent arrears at the end of the tenancy?

Can the landlord charge for cleaning costs?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions