Published tribunal order
Tenancy Tribunal case 4342781 — Rent arrears
Decided 20 Nov 2023 · Published 20 Nov 2023 · Application 4342781
- Rent arrears
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of both parties names and identifying details.
- [The landlord/s] must pay [The tenant/s] $1,213.33 immediately, calculated as shown in table below:
Reasons
- The hearing was held on the 29 September at the [Event location suppressed] both the tenant and the [The property manager/s] the property manager for the landlord attended. Both parties indicated that they had correspondence or further evidence which might be relevant to the claims that they wanted to submit to the Tribunal. I allowed the parties further time to file evidence by Wednesday 5 October. Background facts
- The tenant rented this property after seeing the property advertised in a [online] advertisement.
- The property is a 4-bedroom home with a number of paddocks and a ‘bush block’. The tenant raised cattle and goats on the property. The tenant lived at the property with three children in her care. She had sought out the property to provide the children with a stable, rural environment in a small community. She had hoped to stay at the premises long term.
- Unfortunately, midway through 2022 the tenant’s circumstances changed and she could longer afford to remain at the property. The tenant gave notice to end the tenancy.
- The landlord purchased the property from a neighbour just before the tenancy began. The Property Manager throughout the tenancy was [The property manager/s]. [The property manager/s] told me at the hearing that apart from the disagreement about the extent of the premises that had been rented, she did not have any concerns about the way that the tenant had lived in the property and had enjoyed a good professional relationship with the tenant.
- The tenant has made the following claims a) Compensation for land which she claims is part of the tenancy, being used by the landlord. b) Reimbursement for rent which the tenant says she has overpaid; and c) Compensation for cleaning costs which she says she completed to higher standard as a result of the landlord’s requirements.
Did the tenant receive the benefit of the land she rented?
- The tenant claims that the landlord did not allow her full enjoyment of the property which she rented. The tenant says that when the property was advertised it was advertised by address and there was nothing to indicate that the total of the property would not be rented. The landlord says that the property was advertised as: 4-bedroom home with ensuite in master and walk in wardrobe, family bathroom, separate formal lounge, fireplace, double internal access garage, large shedding in paddock and 5.58acres of land. Neither party had a copy of the original trade me advertisement.
- The tenancy agreement records the address of the property as [Tenancy address suppressed]. It does not record that parts of the address will be retained by the owner.
- On or about the 21 Aril 2021, the tenant saw a local fencer on the property she asked him what he was doing, and he told her he was marking out the fence lines for the owners dwelling to be erected. The tenant says she immediately contacted the property manager because she had not been told that the owner would be erecting a dwelling on the property or that some other parts of the property were being retained by the owner. A meeting was held on the 29 April between the owner, [The property manager/s] and the tenant. The tenant’s position was that she had never been told that the owner would be erecting a second dwelling on the land. The owner’s position was that she had clearly told her property manager to tell prospective tenants that there would be a second dwelling erected and that the owner was retaining some land for grazing. The property manager says she did tell the tenant, but the tenant disputes this.
- Having heard from the parties and reviewed the evidence I am satisfied on the balance of probabilities that the property was represented to the tenant as the whole of the property at [Tenancy address suppressed], I say this because: a. That is how the property is described in the tenancy agreement. b. The is no mention in the tenancy agreement of the owner retaining any part of the land. c. The advertisement of the property does not disclose that the owner will be retaining any part of the land. d. Whilst the landlord says was a reference to the property being 5.58 acres and bush block, there is was nothing in the advertising material or written documents to indicate to the tenant that the whole of the property would not be rented to her. It is unreasonable to expect a prospective tenant to be able to judge the total land rented to her and take from that she was not being rented the full property, especially when the grazing paddocks were adjacent to the bush block rather than being next to each other. e. Whilst it was accepted that [The property manager/s] had offered to walk the boundaries of the property with the tenant at the time of the viewing and the tenant declined, this does not alleviate the landlord from making it clear if any land was being retained by the owner. f. [The property manager/s] says that she recalls that she told the tenant where the boundaries were and that the owners were retaining portions of the property. The owner says that at the time of the viewing the owner’s cattle and horses were in the retained paddocks and it should have been obvious from the stock being there that the tenant was not renting this portion. I disagree, the tenant did not know the owner’s circumstances and there are many reasons that the stock might have been in those paddocks at the time of viewing, least of which was to graze them. The tenant says [The property manager/s] did not tell her where the boundaries were. I find it more likely that [The property manager/s] did not tell the tenant about the retention of land by the owners because it is clear from the tenant’s correspondence in April 2021 that the tenant was not aware of the owner’s intention to retain land.
- The tenant seeks $7000.00 compensation for the reduction of land. She says: I feel that I have been unfairly treated and that I have paid rental on about three plus acres of land that I have not been able to use, therefore not being able to buy the cattle numbers that I intended buying when I rented the property. The property is about 15 acres but a large piece is in protected bush. This is why the paddocks were important to me.
- The landlord says that the tenant should not be compensated because the land was advertised as 5.58 hectare but that was conservative an and that the tenant actually used around 7 acres of land (this was estimated by the owner). The landlord also says that the drop in the price to $750 from a rent appraisal of $810 was to reflect that the tenant would not receive the whole of the land; therefore, the tenant got the value of what she paid for. The rent appraisal was not produced in evidence and the tenant said she was unaware of any rent appraisal of drop in the rent from $810 to $750. I also record that the owners’ evidence on the decrease of the rent is different from that of [The property manager/s]. [The property manager/s] says that the rent was dropped at the request of the tenant (which the tenant disputes).,
- In addition, the tenant accepted in April 2021 that she would continue to rent the property with the owner retaining some of the land for $750 per week. I accept that the tenant may have done so reluctantly because she wanted to remain in the property and on good terms with the property manager and the owner, but nevertheless that was the agreement that was made between the tenant and the landlord and I do not consider that the tenant is entitled to any compensation from that point on.
- I am satisfied that from the beginning of the tenancy to the April 2021 the tenant paid rent for less rent than what she had bargained for. Whilst the tenant seeks $100 per week for this loss, there was no evidence as to how that figure was arrived at (such as the value of similar grazing land in the area). I have decided to award one weeks rent to the tenant as compensation.
Has the tenant overpaid rent?
- There is no dispute that the tenancy began on the 19 February 2021. The tenant says that landlord offered to give her one week’s free rent because the changes to the RTA on 11 Feb 2021 meant that the tenant had to give 28 days’ notice to her previous landlord and this would have meant that the tenant had to pay double rent for the week beginning 19 February. The tenant says that she understood that the landlord would give her one week’s free rent.
- There is a dispute about what was actually agreed on – the property manager started charging rent from the 23 February not the 25 February (Rent would run from 19-25 February -7days). The property manager says that the 23 February was what was agreed on as to when rent would begin.
- I have considered the evidence on this matter and I am satisfied that it is more than likely that the agreement was that the tenant would be given one week’s rent free and rent would be payable from the 25 February. I say this because: a. The owner’s evidence refers to the tenant being given the benefit of a week’s free rent. b. The tenancy agreement records that the next rent payment is due from the 4 March which is a Thursday not from the 1 March which is a Monday. c. The tenant paid her first two weeks in advance on the 16 February and I consider it likely that the system generated the rent start date from one week after the payment date, rather than by agreement between the parties.
- There is also a dispute over when the tenancy ended. The tenant gave notice ending the tenancy on the 22 June 2022. The notice asks if the landlord can do an inspection of the property on the 23 June. The landlord accepted the notice. The tenant moved on the 22 June but accepts that she had possession on Thursday 23 June as she moved some items and completed cleaning on that day. The tenant says she intended to hand back the keys that day, but when she rang the property management office after 4pm she was told that the landlord’s office was closed, and she would need to return the keys on another day.
- The landlord says that the she agreed that the tenant could have the keys to the 23 June as the tenant had stock that had to be collected from the property. The landlord says that she texted the tenant at 6.43 asking for an update, the tenant responded at 9.05 saying yes everything had gone but she had not been able to drop of keys due an issue with her vehicle. [The property manager/s] says that they agreed to meet At [The property manager/s]’ offices on Saturday 25 to hand over keys.
- The landlord has charged the tenant rent to the 25 June as that is the day that the tenant handed back the keys and also the tenant’s painters had been at the property on either the Saturday or the Sunday.
- The tenant says she should only be liable for rent until the 23 June as she had possession on that day and would have handed back the keys if she had been able to do so. The tenant says she had not known or given permission for her painters to be at the property after the 23.
- Tenants are liable for rent until the vacate date, or until they part with possession whatever is the later. (see s 60 RTA). When keys are handed back is evidence of when a tenant parts with possession, but retention of the keys does not amount to possession. When a tenant parts with possession requires a factual analysis. The tenant gave evidence that she attempted to give the keys back on the 23 June. The tenant had moved out of the property by that date. On the 25 June the landlord’s agent or the owner went to the property as that is the day that they say they saw the tenant’s painters.
- I accept the tenant’s evidence that she had not known or given permission for the painters to be at the property on that date.
- The tenant is liable for rent until midnight on Thursday 23 June 2022.
- The tenant is liable for rent from the 25 February 2021 to Thursday 23 June 2022 (inclusive). Using the rent calculators, the tenant was liable for rent from 25/2/21 to 23/5/22 (64 weeks and 5 days) @$750 per week= $48,535.71 and from 24/5/22 to 23/6/22 (4 weeks 3 days)@ $800 per week = $3542.86 making a total rent owed of $52,078.57. The tenant has paid $52,521.43 and therefore is entitled to a rent credit of $442.86.
Is the tenant entitled to any compensation for cleaning costs?
- The tenant says that she employed [The carpet cleaning company] to do an end of tenancy clean for her. She says that she did this to ensure that she received her full bond back. The tenant says that the standard expected by the landlord for an end of tenancy clean was above the reasonable standard and that she incurred additional costs by asking [The carpet cleaning company] to return to complete items.
- It is fair to say that the amount that the tenant paid her cleaning company was very high and would reflect extensive cleaning. The landlord was somewhat surprised by this as she said that the tenant had always kept the house clean and tidy. She said that at the vacate inspection the cleaning was complete to a good standard but that there were items that had been missed such as the removal of some items and the fireplace was not cleaned. The landlord also said that one of the toilets needed cleaning. The tenant says that in response to the landlord’s request for further cleaning she had her cleaners undertake cleaning at considerable cost to her. Again, she says she did this to ensure she received her full bond back.
- Whilst I have some sympathy for the tenant and the extensive costs she has incurred, the appointment of her cleaning company was not at the landlord’s request and was the tenant’s decision. Tenants should be mindful when cleaning that the standard to leave the property is reasonably clean and tidy not hotel or motel standard. If a landlord asks for cleaning to be done that is more extensive than this, then the tenants should dispute this in writing with the landlord before the cleaning is done. A landlord who asks a tenant to do more than what is reasonable may well face a claim for compensation in the Tribunal. However, this is not the case here, the tenant did not give evidence that the landlord insisted on cleaning that was more than the reasonable standard in the initial clean. It was the tenant’s sole decision to pay for cleaners to do the work she asked them to do.
- The additional cleaning was comprised of areas that were not left reasonably clean (such as the fireplace) and other cleaning that was to a higher standard than what was reasonably clean and tidy (the toilet- which could have been quickly flushed and wiped by the agent or the landlord, benches and cupboards (there was evidence of a couple of cupboards being missed in the clean, but again those jobs would have required a quick wipe) However the tenant was only charged $45 plus GST for this work and the invoice notes that the tenant was not charged for some of the work. The landlord would have had to clean the fireplace and would likely have been charged this amount for the cleaners to travel to site and remedy.
- The tenants claim for compensation for the cleaning is not proven and therefore dismissed. Filing fee
- The tenant has been successful in some of her claims, I therefore grant the tenant the filing fee. Name Suppression
- I also grant both parties name suppression as they have been both somewhat successful and I do not consider that there is any public interest in having the parties names published.