Published tribunal order
Tenancy Tribunal case 4472622 — Rent arrears at 783 Dairy Flat Highway, Dairy Flat, RD 2, Dairy Flat 0792
Decided 13 May 2024 · Published 13 May 2024 · Application 4472622
- Rent arrears
- Cleanliness
- Property damage
Party names are redacted in the official published order.
Order
- Gareth Neil Williams, Shyann Dovell-Hinton and Jamie Lee Affleck Robertson must pay [The landlord/s] $7,316.11 immediately, calculated as shown in the table below.
Reasons
- Both parties attended the hearing. The landlord was assisted by a mandarin interpreter. The tenants that attended the hearing were Gareth Williams and Shyann Dovell-Hinton, though Mr Williams left the hearing room soon after the hearing began.
- This application by the landlord was determined in an Order of the Tribunal dated 21 March 2024 (“the March Order”).
- By the March Order: a. The landlord’s application for rent arrears was declined b. The tenants were required to pay the landlord $7,316.11 made up of: Repairs$1,242.23 Cleaning: Pool$841.04 Cleaning$1,380.00 Lock/key replacement$13.83 Missing furniture$1,238.50 Filing fee reimbursement$20.44 Total award$4,736.04
- On 25 March 2024, the landlord applied for a rehearing on the grounds that rent payments said to have been made by the tenant, had not been received by the landlord. The application for rehearing was granted on the papers.
- This was a re-hearing of the initial claim.
- Perhaps understandably, the landlord had thought that this hearing would only reconsider her claim for rent arrears.
- However, a rehearing was ordered, without limitation of the issues to be reheard. I took the view that the tenants were entitled to address other aspects of the landlord’s claim as well. Rent arrears
- As noted in the March Order, the Tribunal terminated the tenancy on 7 October 2022 by order 1 dated 5 October 2022, (“the October Order”) due to rent arrears. The tenants were present at that hearing.
- The October Order found that arrears owed to 7 April 2022 were $4,720.00. The bond of $4,720.00 was paid to the landlord, which paid those arrears.
- During the hearing I explained, to Mr Williams’ disappointment, that the Tribunal is not now in a position to revisit the findings made by the Tribunal in the October Order.
- It is agreed that the tenants returned possession of the premises to the landlord on 30 October 2022. The issue is what rent, if any, is due for the period from 8 October 2023 to 30 October 2022.
- The landlord has provided full bank statements from the rental account which records rent payments received from all tenancies managed by the landlord. 1 The account number noted on that statement is the same as the bank account specified number specified in the agreement, for payment of rent
- That bank statement records a deposit of $1,180.00 (the rent payable for the premises) on 7 October 2022 coded “S DOVELL-HINTON 783dairyflat”. It also records a deposit of $4,720.00 on 31 October 2022 coded “TENANCY BOND TRUST A 783 DAIRYFL5946122-003)” which is consistent with payment of the bond to the landlord.
- The statement records no other deposits during the month of October 2022 of an amount or with a coding, which could correlate to a rent payment by the tenants.
- The tenants have provided a screenshot of what are said to be phone bank records showing payments of $1,180.00 each on 14, 22 and 29 October 2022. It does not identify the receiving account, but the tenants say they record rent payments.
- Those 2 pieces of evidence are difficult to reconcile.
- In making its decision, the Tribunal must rely on the best evidence available. In this case, I find that the complete bank statements provided by the landlord are the most persuasive evidence available. Based on that evidence I find that it is more likely than not that since the October order, the tenants made one rent payment of $1,180.00 on 7 October 2024. That being so, further rent of $2,528.57 is due to 30 October 2022. Cleaning
- Ms Dovell-Hinton provided additional evidence in the form of photographs taken by her. She says they were taken on 30 October 2022. Her evidence is that further cleaning work was done after the property manager did an inspection. She alleges that the photographs provided by the property manager were taken when that initial inspection was done, before the tenants did their final cleaning.
- The tenant also says that many of the photographs were taken from outbuildings, which were not part of the tenancy.
- The landlord denies those suggestions.
- Having considered that additional evidence, it seems clear to me that the tenants made significant efforts to clean the principal dwelling which appears to have been left, for the most part in a reasonable condition.
- The property manager also confirms that no other cleaning work was done or paid for by the landlord or the owner before a new tenancy started, meaning that the tenants are being asked to pay all costs connected with having the premises made ready for a new tenancy. In my view that goes beyond the tenants’ obligation to leave the premises in a reasonably clean and tidy condition (s.40(1)(e)(iii).
- The evidence, some of which was not available to the previous adjudicator, persuades me that in some respects additional cleaning was required for the premises to be reasonably clean and tidy but I find that compensation of $1380.00 is excessive for the tenant’s breach.
- In my view compensation of 50% of that amount would be just. Missing Furniture
- The landlord brought claims for several items of furniture said to be missing when the tenancy ended.
- The tenants say that: a. one of the items claimed for was not missing; b. the landlord has claimed excessive compensation for missing items, having regard to their age and condition.
- One of the items claimed for is a bench with a metal top.
- The tenant has provided a copy of emails from the landlord. The first has a photograph of that bench, followed by another saying “Sorry, I sent the wrong bench in the last e-mail. Please find the attached for the correct one, Please return it back”. The photograph attached to that email is of a similar bench, also with a metal top but with an inlaid sink.
- The tenant says that is evidence that the landlord is mistaken and that the first bench referred to, without the sink, wasn’t missing.
- These compensation claims are for the landlord to prove. That e-mail exchange raises sufficient doubt for me that I do not consider it proved to be more likely than not than the bench in question was missing at the end of the tenancy.
- The landlord’s claim is for: Kitchenette in the room next to the garage$800.00 Display cabinet in the studio$500.00 Cabinet in the studio$400.00 Shelves in the barn$500.00 Shelves(2) in the garage$500.00 Lock for basement $38.50 Total $4,038.50
- In the March Order, $1,238.50 was awarded, noting, “The tenant did not agree that all these items were missing. The tenant acknowledged that the display cabinet and the shelves in the garage broke and were disposed of. The tenant acknowledged responsibility for the lock. The landlord has provided the estimate to replace these missing items with new items. I do not accept that the value sought by the landlord is warranted given the age and condition of the missing items. Instead, I have estimated the value of the items and the cost to replace them with similar second hand items.”
- The tenant has provided evidence to show that the secondhand replacement value of the missing items is less than claimed by the landlord. The March Order had made that same finding and significantly reduced the compensation awarded accordingly.
- The price at which replacement items cold be bought n marketplace or trade me is a factor. The landlord is also entitled to allowance for the cost and inconvenience of having to buy and collect items that ought to have been left on the premises.
- Considering those factors and the tenant’s evidence of replacement values, my view is that the compensation estimate made by the previous adjudicator is appropriate. A deduction of $150.00 is made for the cabinet referred to above.
- In other respects, there is no challenge to the findings made in the March Order.
- The landlord is entitled to reimbursement of the filing fee.