What was Tenancy Tribunal case 4445360 about?

The tribunal order states: The tenants’ names and identifying details must not be published.

How much money was awarded in case 4445360?

Additional Power Cost To Run Dryers: $20.00 awarded to tenant; Cleaning: $1,173.00 awarded to tenant; Cleaning: $220.00 awarded to tenant; Cleaning: $50.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Loss Of Amenity And Inconvenience: $825.86 awarded to tenant; Smoke Alarms: $500.00 awarded to tenant; Tenants’ Mover’S Invoice: $810.00 awarded to tenant

What type of tenancy dispute was case 4445360?

The primary dispute was Cleanliness. Related themes: Smoke alarms.

Where can I read the official tribunal order for case 4445360?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9337571-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4445360 about?

The tribunal order states: The tenants’ names and identifying details must not be published.

How much money was awarded in case 4445360?

Additional Power Cost To Run Dryers: $20.00 awarded to tenant; Cleaning: $1,173.00 awarded to tenant; Cleaning: $220.00 awarded to tenant; Cleaning: $50.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Loss Of Amenity And Inconvenience: $825.86 awarded to tenant; Smoke Alarms: $500.00 awarded to tenant; Tenants’ Mover’S Invoice: $810.00 awarded to tenant

What type of tenancy dispute was case 4445360?

The primary dispute was Cleanliness. Related themes: Smoke alarms.

Where can I read the official tribunal order for case 4445360?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9337571-Tribunal_Order_Redacted.pdf.

40 Seamount Drive, Red Beach 0932 Tenancy Tribunal Case 4445360 — Cleanliness

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40 Seamount Drive, Red Beach 0932 Tenancy Tribunal Case 4445360 — Cleanliness | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4445360. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Tenants’ own cleaning work	$220.00	Tenants’ own cleaning work
Tenants' cleaning contractor – one hour	$50.00	Tenants' cleaning contractor – one hour
Tenants' carpet cleaner’s invoice	$1,173.00	Tenants' carpet cleaner’s invoice
Additional power cost to run dryers	$20.00	Additional power cost to run dryers
Loss of amenity and inconvenience	$825.86	Loss of amenity and inconvenience
Breach of smoke alarm duties – exemplary damages	$500.00	Breach of smoke alarm duties – exemplary damages
Tenants’ mover’s invoice	$810.00	Tenants’ mover’s invoice
Filing fee	$20.44	Filing fee

Claims and awards for application 4445360. Verify on MoJ.

Tenants’ own cleaning work

Amount: $220.00
Awarded to: Tenant
Reason: Tenants’ own cleaning work

Tenants' cleaning contractor – one hour

Amount: $50.00
Awarded to: Tenant
Reason: Tenants' cleaning contractor – one hour

Tenants' carpet cleaner’s invoice

Amount: $1,173.00
Awarded to: Tenant
Reason: Tenants' carpet cleaner’s invoice

Additional power cost to run dryers

Amount: $20.00
Awarded to: Tenant
Reason: Additional power cost to run dryers

Loss of amenity and inconvenience

Amount: $825.86
Awarded to: Tenant
Reason: Loss of amenity and inconvenience

Claim types — money lines allowed on this order

Carpet Cleaning Cleanliness Filing Fee Replace Smoke Alarms

Order

The tenants’ names and identifying details must not be published.
Hibiscus Property Managers Limited as agent for Catherine & Jeremy Wooller must pay [the tenants] $3,619.30 immediately, calculated as set out in the following table: DescriptionTenant Tenants’ own cleaning work$220.00 Tenants' cleaning contractor – one hour$50.00 Tenants' carpet cleaner’s invoice$1,173.00 Additional power cost to run dryers$20.00 Loss of amenity and inconvenience$825.86 Breach of smoke alarm duties – exemplary damages$500.00 Tenants’ mover’s invoice Filing fee $810.00 $20.44 Total award$3,619.30 [The applicant/s] Tenant

Reasons

Introduction

The tenants are a married couple. The husband of the couple attended the hearing, representing his wife also.
Cherry Gilbert and Cameron Winefield, who together managed the property for Hibiscus attended for the landlord.
The tenants seek compensation and exemplary damages for the landlord failing to provide the premises in a reasonable state of cleanliness, failing to provide and maintain the premises in a reasonable state of repair, breaching its smoke alarm duties, and failing to approve a minor alteration to the premises. Background and issues for determination
The tenancy began on 4 November 2022. The tenancy was a fixed term that was not due to end until 4 November 2023. However, due to the tenants’ profound dissatisfaction with the premises, the parties agreed to end the tenancy on 24 May 2023.
The tenants have two young children. Among other things, one of the children has celiac disease and the other has a form of autism and is non-verbal. Because of these conditions it is particularly important for the tenants’ children that their home is hygienic and safe.
The tenants moved into the premises at short notice, desperate to leave their previous rental home where they had an unhappy experience. The tenants had also brought a case against their previous landlord in the Tribunal because of the problems at the premises. The Tribunal found that the previous landlord had not provided the premises reasonably clean, had breached the healthy homes standards disclosure requirements, and had interfered with the tenants’ reasonable peace comfort and privacy by making inappropriate comments in the tenants’ children’s presence: Tenant v Blake Green Properties Limited [2022] NZTT 4401588.
The tenants felt scarred by the experience. The wife had to see her doctor for anxiety and stress and was prescribed medication.
Unfortunately, the tenants found these premises were also below acceptable standards of cleanliness and maintenance. They had got their hopes up, thinking that this at last would be a lovely property for them but instead once they moved in, felt they were in a recurring nightmare.
Ms Gilbert and Mr Winefield worked together with the tenants to address the tenants’ concerns up some extent. But ultimately, the property managers considered the tenants had unreasonably high expectations and the landlord would not meet all of the tenants’ demands. Consequently, the tenants remained dissatisfied with the condition of the premises and believed the landlord was not taking their concerns seriously enough.
Despite disagreeing with the tenants’ on whether the landlord should be making more concessions than it had, the landlord agreed to release the tenants from the fixed-term tenancy without penalty.
Since moving out, the tenants have since found a good home where they are content.
The issues for decision are: a. Did the landlord fail to provide the premises in a reasonable state of cleanliness? b. Did the landlord fail to provide and maintain the premises in a reasonable state of repair? c. Did the landlord breach its smoke alarm duties? d. Did the landlord fail to approve a minor change to the premises?

Did the landlord provide the premises reasonably clean?

Legal principles

The landlord must provide the premises to the tenant in a reasonable state of cleanliness at the beginning of the tenancy: s 45(1)(a) of the Residential Tenancies Act 1986 (RTA). Tenants similarly have an obligation at the end of their tenancy to leave the premises reasonably clean and tidy and remove their rubbish: s 40(1)(e)(iii) of the RTA.
“Reasonably clean” means clean to the standard that an objective bystander would consider reasonable. A “reasonable” state of cleanliness does not mean spotless, immaculate, commercially cleaned, or cleaned to hotel or motel standard. After a tenancy has ended, the premises may be reasonably clean, yet the landlord may still have some work to get the premises up to reasonable standard for a new tenant and cannot claim the cost of that to the original tenant.
The onus for establishing the claim, sits with the person making it on the balance of probabilities. In this case, the tenants want to recover cleaning costs. Therefore, the tenants must prove that the landlord did not provide the premises in a reasonable state of cleanliness.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00: s 45(1A) of the RTA. The evidence
The property managers inspected the premises after the previous tenancy ended and before this tenancy began. They identified that some parts of the house and the oven needed cleaning. They instructed a general cleaner and a specialist oven cleaner to carry out specific cleaning tasks, rather than a broad instruction to clean the entire premises. The general cleaner invoiced the landlord for four-and-a-half hours’ cleaning work completed on 2 November 2023. The oven cleaner invoiced the landlord $190.00 for work completed on 3 November 2023, the day before the tenancy began.
On 4 November 2023, the tenants moved in but were devastated to find the premises were disappointingly unclean. There were fly spots in multiple places throughout the house, including on ceilings, walls, the heat pump, and the smoke alarms. The walls in places had squashed bugs, splattered food, and hand marks. Some of the kitchen cupboards were grimy and unclean. The kitchen extractor fan was dirty. The bathroom drawers still had some grime, hairs, and other detritus. The bathroom sinks, and the base of the toilet had not been thoroughly cleaned. The kitchen and dining rooms’ tiled floors’ grouting was grimy. The roller blinds contained bugs and food marks. There were handprints on the windows. The oven, while apparently recently cleaned, was far from spotless.
After the tenants complained, the landlord had some further cleaning done (including by the property managers’ company’s own highly trusted cleaner) and paid for two hours of the three hours the tenants’ own cleaner spent cleaning the kitchen. However, the tenants still found the cleaning inadequate and spent about a day cleaning themselves. They were never happy with the cleanliness of the oven which could not be thoroughly cleaned because the side-racks could not be removed, to begin with at least.
The tenant’s cleaner, Carla Webb, wrote a letter for the tenants dated 20 March 2023 stating: I have done many end of tenancy cleans and was quite alarmed to see the state of the kitchen alone. I did not see much of the rest of the house, and I personally did not feel the kitchen was up to the standard required to get a bond back... ...The insides of the cupboards and drawers were dirty, greasy, and unpleasant. The back splash for the stove was a gray yellow, yet after I cleaned it, it was white with white grouting... The kitchen was certainly not a standard of cleanliness I would have been comfortable to live in let alone to have worked on.
The parties have submitted photographs and videos showing the property’s cleanliness.
A few days into the tenancy, the tenants became increasingly aware of a foul odour which was not abating as they hoped. They identified that the odour was emanating from the carpets, which were old and stained.
The tenants contacted the property managers about the issue but in the property manager’s professional opinion the carpets did not require professional cleaning and they refused to do so. The tenants felt compelled to get their own professional carpet cleaner to thoroughly clean the carpet because they were embarrassed to have guests over due to the smell and they feared for their children’s health.
The tenants say the carpet contractor was highly experienced and told them that the carpet was stained with urine. The contractor noted on his invoice: Carpets in terrible condition on arrival. Animal urine smell throughout all areas. Property not in a clean hygenic condition to be lived in. Have tried best we can but urine maybe in underlay.
After the professional carpet cleaning was done, the tenants ran four commercial dryers for a week to dry the carpets. The tenants say after the cleaning was done there was an improvement in intensity of the foul odour, but the carpets still smelt bad. They say, their carpet contractor said the continuing smell was due to the underlay needing to be replaced.
The landlord’s property managers continue to maintain that the carpets did not smell bad and did not need professional cleaning. The property managers submit that the previous tenants did not have any pets. The previous tenants provided a statement confirming that they lived in the premises happily for years. The owner was unaware of a pet odour problem. The property managers themselves could not smell any unpleasant odour emanating from the carpets, although they could smell an odour coming from the bedroom in which the tenants’ cat was kept. The carpets are about 15 years old but are still in a reasonable condition. Discussion
The parties disagree on whether the level of cleanliness was to a reasonable standard.
The tenants had similar issues at their previous tenancy, so a question naturally arises: did these tenants have unreasonable expectations as to what reasonable cleanliness is? The tenants acknowledge that they do have higher cleanliness standards than many, but submit they did not expect that standard, just a reasonable standard that would apply to any tenancy for any tenants.
The property managers in this case have impressed me as being professional and capable. I have found their submissions and evidence to be measured and appropriate. I am alive to the tenants’ self-admittedly high standards. Probably many tenants faced with the premises as they were would have just cleaned the worst of it and got on with it. These tenants could not do that. They were more sensitive than others to lack of cleanliness. That intolerance does not of itself mean the premises were reasonably clean, however. And it should also be said of the tenants that despite being sensitive, they had the wherewithal to deal with the stress and demands of asserting their rights in the Tribunal.
In a case like this, the Tribunal brings fresh eyes to determine whether on the evidence before it the standard of cleanliness falls below a reasonable standard or not. Having reviewed all the evidence, including the oral evidence and the photographs and videos, I am satisfied that the premises were not provided in a reasonable state of cleanliness. Among other deficiencies, some of the walls and ceilings were covered in fly spots, the floors were not adequately clean, and the carpets needed cleaning or replacing. Other people may have found the carpets acceptable, but that does not mean they were reasonably clean. The tenants’ contractor considered they were infused with urine. The tenants incurred considerable expense to clean the carpets which confirms that did sincerely believe the carpets were unclear.
Standing back and considering all the evidence, I find it proven that the carpets were not reasonably clean.
I return to considering the cleanliness of the premises as a whole. Overall, the cleanliness of the premises including the carpets was not drastically below the necessary standard of reasonable cleanliness, but I consider it was detectably below the standard.
The property management company’s own instructions to their tenants in moving out includes directions to clean scuff marks, finger or food marks off walls, remove cobwebs, fly spots, and mould off walls, clean windows inside and out, pull out rangehood filters and framework to clean. The landlord did not achieve these standards prior to the tenancy beginning. Conclusions on level of cleanliness
I find it proven that the landlord did not provide the premises in a reasonable state of cleanliness.
I do not find, however, that the landlord’s failure to provide the premises clean was intentional. The property managers assessed the premises as needing cleaning prior to the tenancy beginning. They instructed cleaning contractors to deal with the cleanliness deficiencies they noted. In my assessment, the property managers sincerely thought the premises would be provided clean on entry, the necessary cleaning work having been done. That being so, exemplary damages are not available.
Compensation for the breach is available and should be ordered. Compensation
The tenants should be compensated for the cost of the additional hour’s work they paid their cleaning contractor but which the landlord declined to reimburse them, and for the cost of the carpet cleaning. Orders are made as set out in the order above. A modest allowance is made for additional electricity cost to run the fans to dry the carpets.
I accept the tenants also had to do additional cleaning themselves to bring the premises up to a reasonable standard of cleanliness. It is appropriate to order $220.00 for this. That is not for all the cleaning they did. The award is to cover their efforts up to only a reasonable standard of cleanliness.
The tenants suffered a loss in amenity due to the premises not being adequately clean. Compensation for loss of amenity and move-out costs are addressed below, wholistically with the rest of their proven claims. Did the landlord fail to provide and maintain the premises in a reasonable state of repair?
The tenants claim that the premises were not provided and maintained in a reasonable state of repair.
Their complaints include that the hot water not working, the oven could not be cleaned and its dials were illegible, the house had cracks in the ceiling and floor and some doors jammed, there were leaks in both showers, a vanity, and the kitchen sink, there was a broken downpipe caused water to pool when it rained, a gulley trap was cracked, some lights were not working, and a power socket was completely loose in the wall. Legal principles
Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes...
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 1 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 2 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”
Landlords also have an obligation to repair things that are apparent from observation: 3 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... Discussion
The tenants’ photographs and videos show cracked ceilings and floors and sticking doors. However, these are consistent with movement to be expected in a wooden framed house over time. The owners are aware of the cracks and have no concerns about the building’s structural integrity. The tenants did not provide evidence an expert such as a builder to give evidence otherwise. 1 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. Footnotes not included except for see n 2. 2 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 3 See n 1.
The tenants reported that the hot water cylinder was not working when they moved in. However, the landlord had a contractor fix that and most of the other plumbing issues within a reasonable time.
The landlord decided not to fix the ensuite shower because it was a big job that would have inconvenienced the tenants. However, that decision meant the tenants had to put up with a shower that leaked every time they used it.
The oven was in only a marginal condition. It was about 15 years old and probably nearing the end of its useful life. The side racks could no longer be removed to allow the oven’s sidewalls to be cleaned. The oven icons had worn off, making it impossible to reliably set the oven to the correct mode or temperature.
The tenants say they never used the oven because they found it too dirty and unsafe. On 23 December 2022, the landlord’s technician replaced the oven’s faulty seal, but the decals were incorrectly placed, and an incorrect screw was used to secure one of the side racks. On 25 January 2023, the technician replaced the screw with another, but the tenants considered the replacement screw was also unsafe.
The oven technician says, “the oven is in my opinion perfectly clean and functional for use in a household”. The tenants remained concerned that the replacement screw was not safe, and they could not clean the oven properly because they were concerned that the side racks would break if they tried to take them out.
The oven was clearly not in a reasonable state of repair at the beginning of the tenancy. It was repaired to a workable standard. While I have some sympathy towards the tenants’ views, I defer to the technician’s opinion and conclude that by 25 January 2023, the oven was by in a reasonable state of repair.
The ensuite shower cubicle leaked and was not in a reasonable state of repair. Conclusion
I find that the landlord failed to provide and maintain the premises in a reasonable state of repair in respect to the oven (until 25 January 2023) and the shower cubicle.
I am not however satisfied that the landlord’s failures were intentional except for the ensuite shower. The maintenance issues had not been raised by the previous tenants and were not evident on ordinary inspection. The landlord was entitled to try to repair the oven even if it was not a particularly elegant result and the oven was on its last legs. The landlord refrained from the major work to fix the ensuite shower because of the disruption that would have caused when the tenants were intent on moving out. It would not be just to order exemplary damages in the circumstances, and the Tribunal declines to do so. 4
Compensation for loss of amenity should be ordered, however. The amount ordered for damages for loss of amenity for this claim and other proven claims is discussed below.

Did the landlord breach its smoke alarm duties?

The tenants discovered that one of the premises’ smoke alarms had expired.
Under s 45(1)(ba) of the RTA landlords must comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
One of the smoke alarms had expired. The smoke alarm’s body contains the text “REPLACE ALARM BY YEAR 2018”.
The property owners recently completed a management agreement that stated that each alarm was within date. It was not submitted before me that the property owners had any exculpatory explanation for providing erroneous information about something so vital in the event of fire. I draw the inference that the property owners checked the smoke alarms as required but incorrectly stated that the expired smoke alarm was within its use-by date.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests 4 See s 109(3) of the RTA. of the other party, and the public interest: s 109(3).
I find the unlawful act was committed intentionally. I am satisfied it is just to award exemplary damages. The landlord’s intent was not nefarious, but the effect was to lessen the tenants’ prospects of avoiding harm if a fire occurred. The tenants have an interest in having their right correlating to the landlord’s duty vindicated. It is in the public interest to order exemplary damages to firmly deter landlords from reneging on potentially life-saving duties such as these.
I set exemplary damages at $500.00.

Did the landlord fail to approve a minor change to the premises?

The tenants requested permission to change the showerhead of one of the showers.
The landlord did not respond to the tenants’ request in writing within 21 days. Under s 42A(3) of the RTA, if the tenant makes a written request for consent, the landlord must respond in writing within 21 days after receiving the request.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00: s 45(1A) of the RTA.
Mr Winefield frankly accepts, “This form was missed by myself amongst a number of other emails / requests being made by the tenant on the same day.” Mr Winefield’s explanation does not amount to a reasonable excuse.
In this case I have determined that 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 interest of the other party, and the public interest. See section 109(3) RTA.
I am not satisfied the landlord committed the unlawful act intentionally. It was an honest oversight. That being so, the Tribunal does not have the power to award exemplary damages.
The claim is proved, but no order for exemplary damages is made. Compensation for loss of amenity
As mentioned above, I consider it appropriate to order compensation in favour of the tenants for loss of amenity.
I address this now after full consideration of all of the matters discussed above.
I acknowledge the problems with the property adversely affected the wife’s mental health and I have read her doctor’s letter. Her husband also suffered from this experience. Despite their challenges they have been brave enough to bring this claim which no doubt meant taking on more stress which they would have preferred to have done without.
In light of the matters discuss above, I assess the tenants’ loss of amenity in the premises at 5 per cent of the rent they paid.
The Tribunal therefore makes an order for $825.86. Filing fee
The tenants having been largely successful in their claim, the Tribunal orders that the landlord pays the tenants the filing fee they paid for the application. Non-publication
The Tribunal must on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenants have substantially succeeded in the proceedings. I do not consider that publication is in the public interest or is justified because of the tenants’ conduct or any other circumstances of the case.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4445360. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Tenants’ own cleaning work	$220.00	Tenants’ own cleaning work
Tenants' cleaning contractor – one hour	$50.00	Tenants' cleaning contractor – one hour
Tenants' carpet cleaner’s invoice	$1,173.00	Tenants' carpet cleaner’s invoice
Additional power cost to run dryers	$20.00	Additional power cost to run dryers
Loss of amenity and inconvenience	$825.86	Loss of amenity and inconvenience
Breach of smoke alarm duties – exemplary damages	$500.00	Breach of smoke alarm duties – exemplary damages
Tenants’ mover’s invoice	$810.00	Tenants’ mover’s invoice
Filing fee	$20.44	Filing fee

Claims and awards for application 4445360. Verify on MoJ.

Tenants’ own cleaning work

Amount: $220.00
Awarded to: Tenant
Reason: Tenants’ own cleaning work

Tenants' cleaning contractor – one hour

Amount: $50.00
Awarded to: Tenant
Reason: Tenants' cleaning contractor – one hour

Tenants' carpet cleaner’s invoice

Amount: $1,173.00
Awarded to: Tenant
Reason: Tenants' carpet cleaner’s invoice

Additional power cost to run dryers

Amount: $20.00
Awarded to: Tenant
Reason: Additional power cost to run dryers

Loss of amenity and inconvenience

Amount: $825.86
Awarded to: Tenant
Reason: Loss of amenity and inconvenience

Claim types — money lines allowed on this order

Carpet Cleaning Cleanliness Filing Fee Replace Smoke Alarms

Order

The tenants’ names and identifying details must not be published.
Hibiscus Property Managers Limited as agent for Catherine & Jeremy Wooller must pay [the tenants] $3,619.30 immediately, calculated as set out in the following table: DescriptionTenant Tenants’ own cleaning work$220.00 Tenants' cleaning contractor – one hour$50.00 Tenants' carpet cleaner’s invoice$1,173.00 Additional power cost to run dryers$20.00 Loss of amenity and inconvenience$825.86 Breach of smoke alarm duties – exemplary damages$500.00 Tenants’ mover’s invoice Filing fee $810.00 $20.44 Total award$3,619.30 [The applicant/s] Tenant

Reasons

Introduction

The tenants are a married couple. The husband of the couple attended the hearing, representing his wife also.
Cherry Gilbert and Cameron Winefield, who together managed the property for Hibiscus attended for the landlord.
The tenants seek compensation and exemplary damages for the landlord failing to provide the premises in a reasonable state of cleanliness, failing to provide and maintain the premises in a reasonable state of repair, breaching its smoke alarm duties, and failing to approve a minor alteration to the premises. Background and issues for determination
The tenancy began on 4 November 2022. The tenancy was a fixed term that was not due to end until 4 November 2023. However, due to the tenants’ profound dissatisfaction with the premises, the parties agreed to end the tenancy on 24 May 2023.
The tenants have two young children. Among other things, one of the children has celiac disease and the other has a form of autism and is non-verbal. Because of these conditions it is particularly important for the tenants’ children that their home is hygienic and safe.
The tenants moved into the premises at short notice, desperate to leave their previous rental home where they had an unhappy experience. The tenants had also brought a case against their previous landlord in the Tribunal because of the problems at the premises. The Tribunal found that the previous landlord had not provided the premises reasonably clean, had breached the healthy homes standards disclosure requirements, and had interfered with the tenants’ reasonable peace comfort and privacy by making inappropriate comments in the tenants’ children’s presence: Tenant v Blake Green Properties Limited [2022] NZTT 4401588.
The tenants felt scarred by the experience. The wife had to see her doctor for anxiety and stress and was prescribed medication.
Unfortunately, the tenants found these premises were also below acceptable standards of cleanliness and maintenance. They had got their hopes up, thinking that this at last would be a lovely property for them but instead once they moved in, felt they were in a recurring nightmare.
Ms Gilbert and Mr Winefield worked together with the tenants to address the tenants’ concerns up some extent. But ultimately, the property managers considered the tenants had unreasonably high expectations and the landlord would not meet all of the tenants’ demands. Consequently, the tenants remained dissatisfied with the condition of the premises and believed the landlord was not taking their concerns seriously enough.
Despite disagreeing with the tenants’ on whether the landlord should be making more concessions than it had, the landlord agreed to release the tenants from the fixed-term tenancy without penalty.
Since moving out, the tenants have since found a good home where they are content.
The issues for decision are: a. Did the landlord fail to provide the premises in a reasonable state of cleanliness? b. Did the landlord fail to provide and maintain the premises in a reasonable state of repair? c. Did the landlord breach its smoke alarm duties? d. Did the landlord fail to approve a minor change to the premises?

Did the landlord provide the premises reasonably clean?

Legal principles

The landlord must provide the premises to the tenant in a reasonable state of cleanliness at the beginning of the tenancy: s 45(1)(a) of the Residential Tenancies Act 1986 (RTA). Tenants similarly have an obligation at the end of their tenancy to leave the premises reasonably clean and tidy and remove their rubbish: s 40(1)(e)(iii) of the RTA.
“Reasonably clean” means clean to the standard that an objective bystander would consider reasonable. A “reasonable” state of cleanliness does not mean spotless, immaculate, commercially cleaned, or cleaned to hotel or motel standard. After a tenancy has ended, the premises may be reasonably clean, yet the landlord may still have some work to get the premises up to reasonable standard for a new tenant and cannot claim the cost of that to the original tenant.
The onus for establishing the claim, sits with the person making it on the balance of probabilities. In this case, the tenants want to recover cleaning costs. Therefore, the tenants must prove that the landlord did not provide the premises in a reasonable state of cleanliness.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00: s 45(1A) of the RTA. The evidence
The property managers inspected the premises after the previous tenancy ended and before this tenancy began. They identified that some parts of the house and the oven needed cleaning. They instructed a general cleaner and a specialist oven cleaner to carry out specific cleaning tasks, rather than a broad instruction to clean the entire premises. The general cleaner invoiced the landlord for four-and-a-half hours’ cleaning work completed on 2 November 2023. The oven cleaner invoiced the landlord $190.00 for work completed on 3 November 2023, the day before the tenancy began.
On 4 November 2023, the tenants moved in but were devastated to find the premises were disappointingly unclean. There were fly spots in multiple places throughout the house, including on ceilings, walls, the heat pump, and the smoke alarms. The walls in places had squashed bugs, splattered food, and hand marks. Some of the kitchen cupboards were grimy and unclean. The kitchen extractor fan was dirty. The bathroom drawers still had some grime, hairs, and other detritus. The bathroom sinks, and the base of the toilet had not been thoroughly cleaned. The kitchen and dining rooms’ tiled floors’ grouting was grimy. The roller blinds contained bugs and food marks. There were handprints on the windows. The oven, while apparently recently cleaned, was far from spotless.
After the tenants complained, the landlord had some further cleaning done (including by the property managers’ company’s own highly trusted cleaner) and paid for two hours of the three hours the tenants’ own cleaner spent cleaning the kitchen. However, the tenants still found the cleaning inadequate and spent about a day cleaning themselves. They were never happy with the cleanliness of the oven which could not be thoroughly cleaned because the side-racks could not be removed, to begin with at least.
The tenant’s cleaner, Carla Webb, wrote a letter for the tenants dated 20 March 2023 stating: I have done many end of tenancy cleans and was quite alarmed to see the state of the kitchen alone. I did not see much of the rest of the house, and I personally did not feel the kitchen was up to the standard required to get a bond back... ...The insides of the cupboards and drawers were dirty, greasy, and unpleasant. The back splash for the stove was a gray yellow, yet after I cleaned it, it was white with white grouting... The kitchen was certainly not a standard of cleanliness I would have been comfortable to live in let alone to have worked on.
The parties have submitted photographs and videos showing the property’s cleanliness.
A few days into the tenancy, the tenants became increasingly aware of a foul odour which was not abating as they hoped. They identified that the odour was emanating from the carpets, which were old and stained.
The tenants contacted the property managers about the issue but in the property manager’s professional opinion the carpets did not require professional cleaning and they refused to do so. The tenants felt compelled to get their own professional carpet cleaner to thoroughly clean the carpet because they were embarrassed to have guests over due to the smell and they feared for their children’s health.
The tenants say the carpet contractor was highly experienced and told them that the carpet was stained with urine. The contractor noted on his invoice: Carpets in terrible condition on arrival. Animal urine smell throughout all areas. Property not in a clean hygenic condition to be lived in. Have tried best we can but urine maybe in underlay.
After the professional carpet cleaning was done, the tenants ran four commercial dryers for a week to dry the carpets. The tenants say after the cleaning was done there was an improvement in intensity of the foul odour, but the carpets still smelt bad. They say, their carpet contractor said the continuing smell was due to the underlay needing to be replaced.
The landlord’s property managers continue to maintain that the carpets did not smell bad and did not need professional cleaning. The property managers submit that the previous tenants did not have any pets. The previous tenants provided a statement confirming that they lived in the premises happily for years. The owner was unaware of a pet odour problem. The property managers themselves could not smell any unpleasant odour emanating from the carpets, although they could smell an odour coming from the bedroom in which the tenants’ cat was kept. The carpets are about 15 years old but are still in a reasonable condition. Discussion
The parties disagree on whether the level of cleanliness was to a reasonable standard.
The tenants had similar issues at their previous tenancy, so a question naturally arises: did these tenants have unreasonable expectations as to what reasonable cleanliness is? The tenants acknowledge that they do have higher cleanliness standards than many, but submit they did not expect that standard, just a reasonable standard that would apply to any tenancy for any tenants.
The property managers in this case have impressed me as being professional and capable. I have found their submissions and evidence to be measured and appropriate. I am alive to the tenants’ self-admittedly high standards. Probably many tenants faced with the premises as they were would have just cleaned the worst of it and got on with it. These tenants could not do that. They were more sensitive than others to lack of cleanliness. That intolerance does not of itself mean the premises were reasonably clean, however. And it should also be said of the tenants that despite being sensitive, they had the wherewithal to deal with the stress and demands of asserting their rights in the Tribunal.
In a case like this, the Tribunal brings fresh eyes to determine whether on the evidence before it the standard of cleanliness falls below a reasonable standard or not. Having reviewed all the evidence, including the oral evidence and the photographs and videos, I am satisfied that the premises were not provided in a reasonable state of cleanliness. Among other deficiencies, some of the walls and ceilings were covered in fly spots, the floors were not adequately clean, and the carpets needed cleaning or replacing. Other people may have found the carpets acceptable, but that does not mean they were reasonably clean. The tenants’ contractor considered they were infused with urine. The tenants incurred considerable expense to clean the carpets which confirms that did sincerely believe the carpets were unclear.
Standing back and considering all the evidence, I find it proven that the carpets were not reasonably clean.
I return to considering the cleanliness of the premises as a whole. Overall, the cleanliness of the premises including the carpets was not drastically below the necessary standard of reasonable cleanliness, but I consider it was detectably below the standard.
The property management company’s own instructions to their tenants in moving out includes directions to clean scuff marks, finger or food marks off walls, remove cobwebs, fly spots, and mould off walls, clean windows inside and out, pull out rangehood filters and framework to clean. The landlord did not achieve these standards prior to the tenancy beginning. Conclusions on level of cleanliness
I find it proven that the landlord did not provide the premises in a reasonable state of cleanliness.
I do not find, however, that the landlord’s failure to provide the premises clean was intentional. The property managers assessed the premises as needing cleaning prior to the tenancy beginning. They instructed cleaning contractors to deal with the cleanliness deficiencies they noted. In my assessment, the property managers sincerely thought the premises would be provided clean on entry, the necessary cleaning work having been done. That being so, exemplary damages are not available.
Compensation for the breach is available and should be ordered. Compensation
The tenants should be compensated for the cost of the additional hour’s work they paid their cleaning contractor but which the landlord declined to reimburse them, and for the cost of the carpet cleaning. Orders are made as set out in the order above. A modest allowance is made for additional electricity cost to run the fans to dry the carpets.
I accept the tenants also had to do additional cleaning themselves to bring the premises up to a reasonable standard of cleanliness. It is appropriate to order $220.00 for this. That is not for all the cleaning they did. The award is to cover their efforts up to only a reasonable standard of cleanliness.
The tenants suffered a loss in amenity due to the premises not being adequately clean. Compensation for loss of amenity and move-out costs are addressed below, wholistically with the rest of their proven claims. Did the landlord fail to provide and maintain the premises in a reasonable state of repair?
The tenants claim that the premises were not provided and maintained in a reasonable state of repair.
Their complaints include that the hot water not working, the oven could not be cleaned and its dials were illegible, the house had cracks in the ceiling and floor and some doors jammed, there were leaks in both showers, a vanity, and the kitchen sink, there was a broken downpipe caused water to pool when it rained, a gulley trap was cracked, some lights were not working, and a power socket was completely loose in the wall. Legal principles
Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes...
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 1 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 2 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”
Landlords also have an obligation to repair things that are apparent from observation: 3 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... Discussion
The tenants’ photographs and videos show cracked ceilings and floors and sticking doors. However, these are consistent with movement to be expected in a wooden framed house over time. The owners are aware of the cracks and have no concerns about the building’s structural integrity. The tenants did not provide evidence an expert such as a builder to give evidence otherwise. 1 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. Footnotes not included except for see n 2. 2 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 3 See n 1.
The tenants reported that the hot water cylinder was not working when they moved in. However, the landlord had a contractor fix that and most of the other plumbing issues within a reasonable time.
The landlord decided not to fix the ensuite shower because it was a big job that would have inconvenienced the tenants. However, that decision meant the tenants had to put up with a shower that leaked every time they used it.
The oven was in only a marginal condition. It was about 15 years old and probably nearing the end of its useful life. The side racks could no longer be removed to allow the oven’s sidewalls to be cleaned. The oven icons had worn off, making it impossible to reliably set the oven to the correct mode or temperature.
The tenants say they never used the oven because they found it too dirty and unsafe. On 23 December 2022, the landlord’s technician replaced the oven’s faulty seal, but the decals were incorrectly placed, and an incorrect screw was used to secure one of the side racks. On 25 January 2023, the technician replaced the screw with another, but the tenants considered the replacement screw was also unsafe.
The oven technician says, “the oven is in my opinion perfectly clean and functional for use in a household”. The tenants remained concerned that the replacement screw was not safe, and they could not clean the oven properly because they were concerned that the side racks would break if they tried to take them out.
The oven was clearly not in a reasonable state of repair at the beginning of the tenancy. It was repaired to a workable standard. While I have some sympathy towards the tenants’ views, I defer to the technician’s opinion and conclude that by 25 January 2023, the oven was by in a reasonable state of repair.
The ensuite shower cubicle leaked and was not in a reasonable state of repair. Conclusion
I find that the landlord failed to provide and maintain the premises in a reasonable state of repair in respect to the oven (until 25 January 2023) and the shower cubicle.
I am not however satisfied that the landlord’s failures were intentional except for the ensuite shower. The maintenance issues had not been raised by the previous tenants and were not evident on ordinary inspection. The landlord was entitled to try to repair the oven even if it was not a particularly elegant result and the oven was on its last legs. The landlord refrained from the major work to fix the ensuite shower because of the disruption that would have caused when the tenants were intent on moving out. It would not be just to order exemplary damages in the circumstances, and the Tribunal declines to do so. 4
Compensation for loss of amenity should be ordered, however. The amount ordered for damages for loss of amenity for this claim and other proven claims is discussed below.

Did the landlord breach its smoke alarm duties?

The tenants discovered that one of the premises’ smoke alarms had expired.
Under s 45(1)(ba) of the RTA landlords must comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
One of the smoke alarms had expired. The smoke alarm’s body contains the text “REPLACE ALARM BY YEAR 2018”.
The property owners recently completed a management agreement that stated that each alarm was within date. It was not submitted before me that the property owners had any exculpatory explanation for providing erroneous information about something so vital in the event of fire. I draw the inference that the property owners checked the smoke alarms as required but incorrectly stated that the expired smoke alarm was within its use-by date.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests 4 See s 109(3) of the RTA. of the other party, and the public interest: s 109(3).
I find the unlawful act was committed intentionally. I am satisfied it is just to award exemplary damages. The landlord’s intent was not nefarious, but the effect was to lessen the tenants’ prospects of avoiding harm if a fire occurred. The tenants have an interest in having their right correlating to the landlord’s duty vindicated. It is in the public interest to order exemplary damages to firmly deter landlords from reneging on potentially life-saving duties such as these.
I set exemplary damages at $500.00.

Did the landlord fail to approve a minor change to the premises?

The tenants requested permission to change the showerhead of one of the showers.
The landlord did not respond to the tenants’ request in writing within 21 days. Under s 42A(3) of the RTA, if the tenant makes a written request for consent, the landlord must respond in writing within 21 days after receiving the request.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00: s 45(1A) of the RTA.
Mr Winefield frankly accepts, “This form was missed by myself amongst a number of other emails / requests being made by the tenant on the same day.” Mr Winefield’s explanation does not amount to a reasonable excuse.
In this case I have determined that 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 interest of the other party, and the public interest. See section 109(3) RTA.
I am not satisfied the landlord committed the unlawful act intentionally. It was an honest oversight. That being so, the Tribunal does not have the power to award exemplary damages.
The claim is proved, but no order for exemplary damages is made. Compensation for loss of amenity
As mentioned above, I consider it appropriate to order compensation in favour of the tenants for loss of amenity.
I address this now after full consideration of all of the matters discussed above.
I acknowledge the problems with the property adversely affected the wife’s mental health and I have read her doctor’s letter. Her husband also suffered from this experience. Despite their challenges they have been brave enough to bring this claim which no doubt meant taking on more stress which they would have preferred to have done without.
In light of the matters discuss above, I assess the tenants’ loss of amenity in the premises at 5 per cent of the rent they paid.
The Tribunal therefore makes an order for $825.86. Filing fee
The tenants having been largely successful in their claim, the Tribunal orders that the landlord pays the tenants the filing fee they paid for the application. Non-publication
The Tribunal must on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenants have substantially succeeded in the proceedings. I do not consider that publication is in the public interest or is justified because of the tenants’ conduct or any other circumstances of the case.

Tenancy Tribunal case 4445360 — Cleanliness at 40 Seamount Drive, Red Beach 0932

At a glance

Tenancy Tribunal case 4445360 — Cleanliness at 40 Seamount Drive, Red Beach 0932

At a glance

Claims & awards

Order

Reasons

Did the landlord provide the premises reasonably clean?

Did the landlord breach its smoke alarm duties?

Did the landlord fail to approve a minor change to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Did the landlord provide the premises reasonably clean?

Did the landlord breach its smoke alarm duties?

Did the landlord fail to approve a minor change to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions