What was Tenancy Tribunal case 4463743 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 4463743?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4463743?

The primary dispute was Rent arrears. Related themes: State of repair, Cleanliness, Healthy homes, Mould & damp.

Where can I read the official tribunal order for case 4463743?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9019613-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4463743 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 4463743?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4463743?

The primary dispute was Rent arrears. Related themes: State of repair, Cleanliness, Healthy homes, Mould & damp.

Where can I read the official tribunal order for case 4463743?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9019613-Tribunal_Order_Redacted.pdf.

13A Williamson Avenue, Belmont, Auckland 0622 Tenancy Tribunal Case 4463743 — Rent arrears

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ names and identifying details.
The Bond Centre is to pay the bond of $2,280.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing. [The tenant’s representative] spoke for both tenants and was assisted by her son. Daisy Hu represented the landlord.
The tenant has made claims for compensation for the landlord’s failure to maintain the premises. They seek refund of their bond and reimbursement of the application fee. DescriptionLandlordTenant Total award Bond $2,280.00
The landlord has cross-applied seeking payment of rent arrears, compensation for cleaning and gardening, and compensation for blinds which they say were damaged by the tenants. Rent Arrears
The tenancy ended on 30 October 2022. Having viewed the rent summary provided by the landlord I can see that the tenants have always paid rent on time and indeed were several weeks in advance with their rent for the last 6 months of the tenancy. What is sought here is simply a washup payment for the last few days of the tenancy.
The landlord seeks payment of $143.87 and the tenants agree that amount is owing.
The amount ordered is proved. General Principles
Before considering the other claims, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. Landlord Claim 1 – Cleaning
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 (“the Act”).
The landlord says that the tenants did not leave the premises reasonably clean and tidy when they vacated the premises.
The tenants said they did clean the premises to the best of their ability and what is more the landlord did not provide the premises to them in a reasonably clean and tidy condition (this will be addressed in their claims below).
Whether premises are reasonably clean and tidy is of course a matter of judgment. 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.
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.
Ultimately, it is for the party bringing the claim (in this case the landlord) to prove the case. The landlord has provided photographs showing a mouldy blind and the inside of a drawer. The mouldy blind is part of the claim for blind replacement below.
The landlord has not provided evidence as to the general state of the premises at the start and end of the tenancy. I am therefore unable to properly assess whether, in general, the premises have been left reasonably clean and tidy.
In the absence of evidence showing that the premises have not been left reasonably clean and tidy, this claim must fail. Landlord Claim 2 – Garden Work
The landlord says that the tenants are responsible for maintaining the lawns and garden area in the Tenancy Agreement. The landlord further says that when the premises were vacated the lawns were overgrown and the tenants are liable for this cost.
The landlord provided several photographs showing the outside areas, which were somewhat overgrown. The photos were taken just over a week after the tenants moved out.
The tenants said that firstly, those areas were overgrown when they moved in (messages and photographs complaining about this were provided). They also say that the areas referred to by the landlord are part of the common property shared with two other premises.
I looked at the property on Google Maps satellite view and the tenant also drew a diagram of the area.
The premises rented by the tenants are one third of a larger building that has been divided into a commercial premises and two residential premises. There is a shared driveway and there do not appear to be any outside areas that are exclusive to the tenanted premises.
I do not consider therefore that the tenants are liable for maintaining the common property. This is a landlord responsibility. The landlord ultimately agreed with this and did not pursue the claim. Landlord Claim 3 – Blind Replacement
The biggest part of the landlords claim relates to replacement of blinds. Two quotes were provided, one for $1676.00 from [Blind company 1] and one for $1580.00 from [Bind company 2].
The landlord seeks compensation for replacing roller blinds in three bedrooms and a bathroom. She says that the blinds have been damaged by the tenants’ failure to keep on top of mould and moisture issues in the premises.
For a landlord to succeed in a claim for damage, they 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 of the Act
One of the main difficulty the landlord has in this case is that there is simply no clear evidence as to the state of the premises prior to the commencement of the tenancy. This means that there are already problems in establishing the first limb of the test, namely proving that the damage occurred during the tenancy.
The landlord did not have an ingoing inspection report with accompanying photos, as is usually the case. The landlord produced three photographs taken during an inspection in March 2022. She also produced one photograph of a blind that clearly shows significant mould.
However, the three photographs were taken at a distance and are quite blurry, whereas the one showing the mould is clear and closeup.
Secondly, given the nature of the damage claimed, the landlord must satisfy the Tribunal that the mould is more than fair wear and tear and has been caused by a careless or intentional act on the part of the tenants.
The landlord said that on one occasion when she visited the premises for an inspection, the bedroom window was closed. She said this was evidence that the tenants were not adequately ventilating the premises. She also said that the noticed condensation dripping down the window and said that if the tenants did not regularly wipe the condensation off that it would have contributed to mould growing on the blinds.
The tenants said (and this is part of their claim below) that the premises were prone to moisture and mould and that this was an issue they repeatedly brought up with their various property managers. They said that they did ventilate the property as best they could, including opening windows (when they were home) and using a dehumidifier (purchased at their own expense) however despite all their efforts mould would grow in the premises.
On balance, I am not satisfied that the tenants are responsible for the cost of replacing the blinds.
This is because the landlord has not produced clear evidence as to the state of the blinds prior to the commencement of the tenancy. However, even if they had done so, I consider that the property was inherently prone to mould and is therefore the responsibility of the landlord. I have outlined my reasons for that finding below.
This claim is therefore dismissed. Tenant Claims – Failure to Maintain/Breaches HHS
The tenants said that they have had three different property managers during the time they have been in the tenancy. Ms Hu who has appeared at the hearing today only took over the management of the property in early 2022.
In support of their claims, the tenants supplied photographs, copies of WhatsApp messages and emails, and a written summary of issues with relevant dates. They also attached the Healthy Homes Assessment Report. The assessment was conducted on 17 May 2021.
The tenants moved into the premises on 27 September 2020. They said that apart from vacuuming, there did not appear to have been any cleaning done.
They contacted the property manager, Rowan, straight away to advise him of this and a number of other issues. They followed up with WhatsApp messages and photographs in the days and weeks that followed.
The tenant said that the heat pump was absolutely filthy and the filters were clogged. The heat pump unit was not working. She said that there were stains on the carpet in the entrance way. There were stains on the kitchen floor. The rangehood and filters were full of grease and oil. There was mould and mildew on a number of walls, especially upstairs in the bedrooms. The bathroom was dirty and the shower still full of the previous tenant’s bathroom items and had not been cleaned. The lawns were overgrown. The handle on one of the windows was broken.
Some time later they also discovered that the television connection was not working.
I am satisfied that this was all advised to the property manager at the time.
The tenants said that he did not send a professional cleaner to remedy the situation. Instead, he asked the previous tenant to go back and do some cleaning. The tenant said that a young man did come over several days later, but all he did was wipe down the shower. She said he did not even bring any cleaning products, only a cloth. When she tried to ask the previous tenant why he hadn’t cleaned properly, his response was that they just left it how they had found it when they moved in.
By this time, the tenant had already most of the cleaning herself, because she said they needed to unpack and start living in the premises. They could not cook without first cleaning the rangehood and so did that themselves.
The tenants said that despite sending a lengthy list of problems to the property manager, very little was done over the course of the tenancy.
The tenants said that the heat pump did not work and was only finally repaired after countless emails and urgent requests. This was finally repaired (according to an invoice provided by the landlord) in February 2022.
The window handle was never repaired and remained broken for the duration of the tenancy.
The tenants said that repeatedly raised issues regarding mould and moisture in the property, but nothing was done. The tenants said that the windows in most of the bedrooms were only able to open a few centimetres at most and so it was difficult to ventilate. They said that they always opened the windows during the day if they were home.
The tenants said that the bedroom windows had gaps and would not close properly, and that they had to put newspaper around the gaps to avoid draughts coming into the bedroom.
They paid for their own dehumidifier which they used to try and reduce the moisture in the home.
The tenant said that she was constantly cleaning mould off surfaces but that it would grow back within 10-days to a week. The tenants pointed to the photograph of the mouldy blind provided by the landlord, taken 7 November 2022, as evidence as to how much mould could accumulate in just over a week.
The tenant said that they ventilated the property as best they could, but that this did not stop the mould growing. They were often away from the premises for lengthy periods of time during the weekdays, leaving for work around 5am and returning late in the day. They did not leave windows open when they were absent from the property for security reasons but did open them again when they returned.
The tenants also identified a broken drawer in the kitchen which they notified to their property manager. The tenant ended up partially repairing this to ensure that their children did not hurt themselves on nails that were poking out from the drawer front. The tenants said this was never property repaired by the landlord. Findings on Tenant Claims
Section 45 of the Act requires a landlord to provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.
In this case, I am satisfied on balance given the evidence provided that the landlord did not provide the premises in a reasonably clean condition. I am further satisfied that there were numerous issues in respect of repairs and maintenance that were not resolved in a timely manner. This is a breach of the landlord’s obligations.
Although the Healthy Homes Standards do not specifically apply to this tenancy (which commenced prior to 1 July 2021) nevertheless a landlord has an obligation to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. See section 45(1)(c) of the Act.
The Housing Improvement Regulations 1947 specify a number of minimum standards for housing. These include the requirement for every living room to have an approved form of heating (regulation 6) and every house to be free from dampness (regulation 15).
In this case, there was no operating heater for approximately 18 months. This is a breach of regulation 6 and consequently section 45(1)(c) of the Act.
In respect of dampness and mould, this can be problematic. Mould will grow in a home where humidity is high. There are two ways to reduce humidity; by heating and ventilation, ventilation being the most basic requirement.
Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided.
A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault.
In summary, premises must be able to be used and lived in, in a normal way, without mould developing. If this cannot be done, then it is the landlord’s problem.
If the tenant fails to ventilate and heat the premises when heating and ventilation is available, then it is the tenant’s problem.
Having considered all the evidence provided, I consider it is established that the premises is inherently prone to mould. There was no heating available for a considerable period of time, and it is clear that there were issues with the ability to property ventilate the property given the issues with the windows. I accept the tenant’s evidence that mould would grow back despite cleaning. I find that the mould that was present is more likely than not caused as a result of inherent issues with the premises.
Having found then that the landlord has breached their obligations in relation to section 45 of the Act, I turn to assess compensation.
In this case the primary loss I must focus on in deciding the amount to compensate the tenants is what is referred to as a loss of amenity. That is, rather than a direct financial loss the tenants have essentially been paying for something they have not received.
In this case, there has clearly been a loss of amenity for significant periods during the tenancy, and in relation to dampness and mould throughout the entire tenancy. The tenants paid rent and in return expected a clean, dry, warm home that was properly maintained. For the reasons and to the extent outlined in the paragraphs above, they did not receive that.
Overall, I consider a global figure to recompense the tenants for this loss of amenity is $3000.00. That equates to approximately 5% of the overall rent paid by the tenants for the duration of the tenancy.
Because the tenants have wholly succeeded with the claim, I must reimburse the filing fee. J R Smith 11 May 2023

Tenancy Tribunal case 4463743 — Rent arrears at 13A Williamson Avenue, Belmont, Auckland 0622

At a glance

Tenancy Tribunal case 4463743 — Rent arrears at 13A Williamson Avenue, Belmont, Auckland 0622

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions