What was Tenancy Tribunal case 4338761 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4338761?

Cleaning: $250.70 awarded to landlord; Cleaning: $60.00 awarded to landlord; Reimbursement: $20.44 awarded to landlord

What type of tenancy dispute was case 4338761?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4338761?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8027992-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4338761 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4338761?

Cleaning: $250.70 awarded to landlord; Cleaning: $60.00 awarded to landlord; Reimbursement: $20.44 awarded to landlord

What type of tenancy dispute was case 4338761?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4338761?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8027992-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4338761 — Cleanliness

Claims and awards in Tenancy Tribunal application 4338761 — net $331.14 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet Cleaning	$250.70	Carpet Cleaning
Cleaning	$60.00	Cleaning
Reimbursement	$20.44	Reimbursement
Net award	$331.14
Total payable by Tenant to Landlord	$331.14

Claims and awards in Tenancy Tribunal application 4338761 — net $331.14 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet Cleaning	$250.70	Carpet Cleaning
Cleaning	$60.00	Cleaning
Reimbursement	$20.44	Reimbursement
Net award	$331.14
Total payable by Tenant to Landlord	$331.14

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties names and identifying details.
[The tenant/s] must pay [The landlord/s] $331.14 immediately, calculated as shown in table below.
All other claims are dismissed.

Reasons

This is a re-issue of the order dated 9 August 2022.
Both parties attended the hearing which was held remotely by teleconference.
[The tenant/s] had initially applied for her bond to be returned. That matter was heard by the Tribunal and on 4 May the Tribunal directed that pursuant to section 22B(2) Residential Tenancies Act 1986 (RTA) the bond was to be returned to [The tenant/s] because the landlord had not filed an application setting out the details of their claim against the bond.
The landlord now applies for compensation, and reimbursement of the filing fee following the end of the tenancy.
The landlord as applicant has the burden to prove their respective claims. The standard of proof required is the usual civil standard of ‘on the balance of probabilities’. Put another way, the landlord must persuade me that what they say is more likely than not to be the case.

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

The landlord seeks the following compensation: a. $210 for a clean; b. $250.70 for a carpet clean; and c. $51.75 for having to reseal the shower due to mould.
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) RTA. Cleaning
The landlord’s evidence is that [The tenant/s] left the premise unclean when she vacated, and it had been presented to the tenancy in a fully renovated stated. [The property manager/s] says that the cleaners needed to do a comprehensive clean to get it to the standard of reasonably clean and tidy which is how they rent out their properties. He says the walls were grubby, the skirting boards had not been wiped, the fridge required further cleaning and there had not been vacuuming behind the bed or couch.
[The tenant/s] says the claims are for natural wear and tear. She says there were some marks on the walls when she moved in and there were some stains on the carpet. She accepts not vacuuming behind the couch and bed because they were too for her to lift heavy. She didn’t use cleaning products on the walls as she was concerned that doing so might strip the paint.
A tenant's statutory obligation is to leave a premise reasonably clean and reasonably tidy. This is not an absolute standard as the RTA allows for fair wear and tear. A tenant is not required to leave a property spotless or even in a condition where the landlord would be happy to rent it out to a new tenant. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord. The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined on the basis of the subjective opinion of either the landlord or the tenant. Also, a tenant, generally, should not be expected to keep the premises any cleaner or tidier than they were at the start of the tenancy.
In this situation the landlord did not engage a further cleaner before they re- tenanted the premises. I find that the expectation was higher on the tenant than is statutorily allowed for, however there was some cleaning that [The tenant/s] should have engaged in such as the vacuuming and wiping the spills from the fridge.
Having considered all the evidence, I find it reasonable for [The tenant/s] to compensate the landlord $60 towards the cleaning which is commensurate with the cleaning that would have been required to get the premises to the statutory standard. Carpet Cleaning
[The property manager/s] evidence is that there was a smell in the apartment that was so offensive he could not immediately commence showing the property. He provided evidence of a brown stain which he says was likely faecal matter. The carpet cleaners have written a statement which states that there was a strong smell of urine which was confirmed by the use of a urine probe. They also detected faeces on the carpet. For this reason, the carpets were cleaned. There were no pets in the tenancy.
[The tenant/s]’s evidence is that she is offended at this claim and challenges the veracity of the evidence. She is very clear that there was no urine or faeces in the carpet when she vacated. She did say that she thought something was leaking through the wall from the neighbouring apartment, but she had not notified [The property manager/s] about it. She says she tried to clean all stains she made such as from her makeup.
In deciding any particular claim, I must consider all the evidence presented (including oral testimony). I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all evidence. Having considered all the evidence but placing weight on the independent evidence of the cleaners, I am satisfied that the carpet was not returned in a reasonably clean way and as such [The tenant/s] is responsible for the cleaning cost. Is the tenant responsible for the damage to the premises? - Shower
[The property manager/s] claims compensation for having to re-silicon the edges of the shower as they were covered in mould at the end of the tenancy. He says it was a brand new shower at the commencement of the tenancy, and in October 2021 he had to request [The tenant/s] to clean the shower as he noticed the mould growing. He says by the end of the tenancy it could no longer be cleaned off as it had been left too long and the mould was now in the silicon.
[The tenant/s] agrees that she was asked to clean the mould in the shower and did so with a brush and bleach however it could not be cleaned off. She says she cleaned the shower approximately once a week and there had been issues from the start with the shower being incomplete as it was leaking which the landlord had to attend to. She says there is nothing more that she could do to have prevented the mould from growing.
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.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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.
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.
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. See section 49B(1) RTA.
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.
Having considered the evidence I am satisfied that this issue was more likely than not caused as a result of the type of silicon used in the fitting of the shower. I accept [The tenant/s]’s evidence that she did clean the shower and could not have taken further steps to prevent the mould build up. There is no evidence of the landlord having particular concerns about the cleanliness of the property during the tenancy other than this one request in October, and it is clear there were other issues with the shower. Accordingly, this claim is dismissed. Excess tenants
[The property manager/s] claims exemplary damages for [The tenant/s] breaching the maximum number of tenants allowed in the premises.
Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant must ensure that the number is not exceeded. See section 40(3) RTA. The tenancy agreement in this situation specified that only one tenant could be in occupation.
Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,000.00. See section 40(3A)(e) and Schedule 1A RTA.
In December 2021 [The tenant/s] asked for another key for her partner as he had moved in and would stay until the end of the tenancy. [The property manager/s] advised her of the process that her partner had to complete before he could move in, otherwise she would be breaching her tenancy agreement. [The tenant/s] and her partner completed the application as [The property manager/s] asked, but he says that her partner was then rejected. He advised the partner but not [The tenant/s]. The partner remained living there in breach of the tenancy agreement. [The property manager/s] says he did not raise this with [The tenant/s] again as he says her partner was aggressive and he did not want excessive conflict given he lived next door. However, he says she should have been aware as a key was not issued to her partner and the costs discussed if he did move in were never invoiced.
[The tenant/s]’s evidence is that she was not advised that her partner could not remain or that she was breaching the tenancy agreement. She says she thought they had done what needed to be done and did not realise there was an issue.
I am satisfied that [The tenant/s] did breach the tenancy agreement in having her partner live with her in the property for at least the last three months of the tenancy. Accordingly, I find she has 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) RTA.
Upon consideration of the evidence I am not satisfied that this unlawful act was undertaken intentionally. [The tenant/s] was not aware that her partner had not been accepted and therefore was not intentionally breaching the agreement. It cannot be assumed that tenants are aware they are breaching a tenancy agreement in a situation such as this. Accordingly, the claim for exemplary damages is dismissed. A failure to use the premise principally for residential purposes
The landlord also claims $1,000 exemplary damages pursuant to s40(1)(b) of the RTA as they say [The tenant/s] was not using the premises for residential purposes. [The property manager/s] is certain that [The tenant/s] was running an escort business from the property. He says that as he lives next door, he was able to observe the number of men coming to her door. Because of the frequency (sometimes up to three a day) and the type of the visitors, he is clear they were clients.
His concern is that this work placed the landlord in a vulnerable position with respect to insurance and council compliances. In particular paragraph 31 of the tenancy agreement states that a tenant must not do anything that could reasonably be expected to jeopardise the landlord’s insurance.
[The tenant/s] gave evidence that she is offended at the allegations [The property manager/s] is making and is clear she was not running an escort service from the premises. She says it is her right to have visitors, whatever the reason. She agrees she was having visitors but was not being paid by them.
Having considered the evidence, I find it more likely than not that [The tenant/s] was running a business from the premise in the nature of an escort service. The number of visitors in particular lends itself to that arrangement rather than the one [The tenant/s] described.
I am not however satisfied that she has breached s40(1)(b) of the RTA as it is not proven that she occupied the premise principally for a business purpose rather than a residential purpose. The evidence also does not substantiate the claim that this practice threatened the landlord’s insurance policy.
Finally, I also note that a breach of s40(1)(b) of the RTA of the requirement on tenants to ensure that the tenanted premises is occupied principally for residential purpose is not an unlawful act (see s40(3A)) and therefore does not accrue exemplary damages pursuant to the RTA. Accordingly, this claim is dismissed. Filing fee
Because [The landlord/s] has substantially succeeded with the claim I have reimbursed the filing fee. Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful or if the Tribunal deems it not in the public interest to publicise the details. This includes being successful in their application or in their defence to an application.
Both parties have sought suppression and I grant both applications here. The landlord was successful in their applications and given the sensitive nature of the landlord’s allegations against the tenant in terms of her practices in the property, I also consider her details should be redacted.

Tenancy Tribunal case 4338761 — Cleanliness

At a glance

Tenancy Tribunal case 4338761 — Cleanliness

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

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

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

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

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions