What was Tenancy Tribunal case 4492805 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 4492805?

Cleaning: $100.00 awarded to landlord; Compensation: Breaches of Quiet Enjo…: $300.00 awarded to tenant; Property Damage: $165.00 awarded to landlord; Pool Chemicals: $54.14 awarded to landlord; Vacuuming: $40.00 awarded to landlord

What type of tenancy dispute was case 4492805?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4492805?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9536132-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4492805 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 4492805?

Cleaning: $100.00 awarded to landlord; Compensation: Breaches of Quiet Enjo…: $300.00 awarded to tenant; Property Damage: $165.00 awarded to landlord; Pool Chemicals: $54.14 awarded to landlord; Vacuuming: $40.00 awarded to landlord

What type of tenancy dispute was case 4492805?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4492805?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9536132-Tribunal_Order_Redacted.pdf.

5 Godwit Place, Waiuku, Waiuku 2123 Tenancy Tribunal Case 4492805 — Property damage

Claims and awards in Tenancy Tribunal application 4492805 — net $59.14 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Vacuuming	$40.00		Vacuuming
Carpet Cleaning: stain removal	$100.00		Carpet Cleaning: stain removal
Pool chemicals	$54.14		Pool chemicals
Lock/key replacement: Remote	$165.00		Lock/key replacement: Remote
Compensation: Breaches of Quiet Enjoyment		$300.00	Breaches of Quiet Enjoyment
Total award	$359.14	$300.00
Net award	$59.14
Bond	$3,288.00
Total payable by Tenant to Landlord	$59.14

Claims and awards in Tenancy Tribunal application 4492805 — net $59.14 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Vacuuming	$40.00		Vacuuming
Carpet Cleaning: stain removal	$100.00		Carpet Cleaning: stain removal
Pool chemicals	$54.14		Pool chemicals
Lock/key replacement: Remote	$165.00		Lock/key replacement: Remote
Compensation: Breaches of Quiet Enjoyment		$300.00	Breaches of Quiet Enjoyment
Total award	$359.14	$300.00
Net award	$59.14
Bond	$3,288.00
Total payable by Tenant to Landlord	$59.14

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ name and identifying details.
The landlord’s claim for damage to the carpet is not proven and therefore dismissed.
The Bond Centre is to pay the bond of $3,288.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $59.14 [The tenant/s]: $3,228.86

Reasons

Both parties attended the hearing held on the 13 October 2023.
This is the second hearing of the matter. The first took place on the 12 June and my adjournment order of that date should be read in conjunction with this order.
The property is a large 4-bedroom family home with a pool which adjoins an estuarine reserve and overlooks the inlet. The tenancy began on the 28 January 2022 and ended by agreement on the 12 December 2022. The tenants and their small 5-year-old dog a [breed] called [the dog] lived at the property.
The tenants have accepted the claims that they caused a circular rust stain in one corner where a statue was placed.
The tenant also accepts that she should pay for a replacement garage remote. However, she says that the programming costs were not reasonable and therefore not a loss associated with the breach.
At the last hearing I struck out the tenant’s claim for a market rent review as it was outside time.
The remaining claims that require determination are: Landlord claims: a) Is the tenant liable for the carpet cleaning costs? Including for removal of the rust stain? b) Did the tenant’s dog urinate or defecate on the carpet causing damage? If so, what is the tenant’s liability? c) Did the tenant leave the pool in a reasonably clean and tidy state? If not, what is the tenant’s liability? d) What is the tenant’s liability for the garage door remotes? Tenant claims: e) Did the landlord breach the tenant’s quiet enjoyment? If so, should exemplary damages be awarded? The carpet
The landlord claims that the tenant did not leave the carpet reasonably clean and tidy, that there were dog hairs and dirt in the carpet, despite it having been professionally cleaned by the tenant.
As mentioned above the tenant accepted that the circular stain in one room was caused by a statue on the carpet. This stain was able to be removed by cleaning.
The Tenants obligation is to leave the property in a reasonably clean and tidy state and free from rubbish (see s40(1)(e)(iii) RTA). Reasonably clean means clean to the standard an average, reasonable bystander would consider reasonable 1 , not commercially clean 2 , spotless hotel or motel standard. 3 Reasonably clean is not necessarily to the standard a landlord considers acceptable for a new tenant. 4
There is no greater obligation on a tenant if the landlord allows pets, nor is there a greater obligation when the landlord has let the property to the tenant in a condition that is better than a reasonably clean and tidy at the beginning of the tenancy. A landlord cannot contract with a tenant to require a tenant to leave the property to a higher standard that what is provided for in the RTA, because s11RTA says that any clause where a tenant agrees to do something that is more than their obligations in the Act is unenforceable unless the Tribunal having regard to the circumstances and the interests of the parties is satisfied that it should be permitted.
The parties had a pet agreement as an addendum to the tenancy agreement. The property was originally advertised as no pets. However, the landlord agreed that the tenant could have her pet dog [the dog] at the property and the parties signed a ‘pet agreement’ which provided that the “upon vacating all carpets are to be professionally washed and the property fumigated for fleas.” The landlord tells me that she was reluctant to have pets because two of her four children have an allergy to pet hair. The landlord says she looked at the tenancy services website which advises parties -If the landlord allows pets, make sure you write any conditions into the tenancy agreement.
Section 11(1)(b)RTA states that the Tribunal can ratify agreements which give a greater obligation to tenants than they would have had in the RTA if: the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. 1 Housing New Zealand v Holloway TT Auckland TT215/93, 8 February 1993 at 8. 2 Mills v Kiwi Property Care Ltd TT Hamilton 09/01418/HN, 27 July 2009. 3 Richards v Scully TT Christchurch TT2043/98, 21 July 1998. 4 Ace Property Management Ltd v Owens DC Wellington CIV -2008-1441, 17 December 2008
The obligation to professionally wash carpets is not usually enforceable if the carpets are reasonably clean and tidy, because it is a greater obligation for a tenant than what is in the RTA. However, taking into account the interests of the parties, the landlord wanted the house to be returned clean and without dander, and the tenants wanted to live in her property with her dog, then I am satisfied that the obligation that the tenants wash the carpets should be upheld in this instance. I am mindful that there is a lack of tenancies in New Zealand that allow for pets, and I consider that landlord and tenants should be able to agree on reasonable terms that facilitate tenants having pets in their homes and balance this with the landlord’s expectation that pet owners will compensate the landlord for any problems caused by the pets.
The tenant professionally washed the carpet. The landlord queried that the tenant had the carpets ‘professionally washed’ because it only cost the tenant $230.00. The tenant produced a copy of the invoice for the cleaning, and I am satisfied that the carpets were professionally washed.
However, despite the washing of the carpet I do not consider that the carpets in a reasonably clean and tidy condition as there was a considerable amount of dog hair left in the carpets.
The landlord vacuumed the property (a few days after the tenant left) and photographed the bag, (which was new for the job) she also produced it at hearing. The bag was full of dog hair.
I do not consider that the tenant should have to pay for a further wash, but I do consider that the tenants should pay for the vacuum cleaning, and I order $40.00 for this.
I also am satisfied that the rust-coloured stain was able to be removed by stain removal and that the tenants are liable for that as well. I award $100.00 for this. Did the tenant’s dog urinate or defecate on the carpet causing damage? If so, what is the tenant’s liability?
The landlord claims that the tenants dog also urinated or defecated on the carpet (in at least seven places) resulting in an odour and damage to the carpet and underlay. The landlord says that she had uplift the carpet and seeks the insurance excess for each room.
Having considered the extensive evidence from both parties I am not satisfied [the dog] urinated or defecated on the carpets causing damage: I say this for the following reasons: a) There was no clear evidence as to WHEN the alleged damage was caused. The carpet was 5 years old. The landlord brought the house in mid-2019 and lived there for 18 months before renting it out to the tenant in January 2022. The carpet was new in about late 2017 early 2018. The previous owners had a family tenanting the property. The previous owner told me that he didn’t permit his tenants to have a pet, but he could not confirm one way or the other if they had ever had a pet or had animals visiting the property. b) The stains of the carpet were only discovered over a month after the tenancy ended and were not visible to the naked eye. They were only detected when a carpet cleaner used a product which he said reacted with the urine. The landlord then used a UV light to detect urine. When the carpet has been uplifted there are stains in the same patches on the underside of the carpet and on the underlay and floorboards in the same places as the UV detection. c) The landlord did not do any UV testing before the tenancy. Therefore, it is not possible to rule out that the urine stains occurred before the tenancy began. As the landlord said at the hearing “it could have happened at any time.” The landlord is adamant that the urine stains did not occur whilst she lived in the property. but they may well have been there before hand as they were not visible to the naked eye and could not be detected by smell during the tenancy or until the landlord had the property cleaned. The approach that the Tribunal should take when it is alleged that damage that is not visible occurred during a tenancy was recently discussed in District Court decision 5 on appeal from the Tenancy Tribunal. This was a case about methamphetamine contamination where the landlord was seeking remedial costs after tests for methamphetamine at the end of a tenancy had produced positive results. Like this case on damage, no testing had been carried out before hand so there was no ability to compare tests. The court said: The lack of methamphetamine testing at the start of the tenancy significantly weakens the circumstantial case against the tenants to the point where it is not possible to conclude on the balance of probabilities that it was the tenants who were responsible for the methamphetamine residue located at the premises at the end of their tenancy. d) In addition, I was persuaded that [the dog] is a very obedient dog, visited a lot of indoor places with the tenants without any concerns about her toileting habits. The tenant produced numerous references from friends, colleagues, previous landlords and dog sitters all who had had [the dog] in their homes or workplaces, none reported [the dog] going to toilet inside the home/ workplace. The tenants say [the dog] has never urinated in any of their homes and even on the two occasions they had seen [the dog] become extremely distressed, she had not wet herself. e) [the dog] was never left for long periods of time without the tenants being present and they never noticed any wet stains or patches or smells when they came home. 5 Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210 paragraph 11. f) The tenant tells me that [the dog] never went into bedroom 2 and 3 were there were was urine patches found. g) The house never smelt of pet urine. The urine stains were not detected by smell during the tenancy or until the landlord’s carpet cleaner detected them. The tenants were away for a period of 3 months, and for a considerable period the house was locked up. The property manger went to the property during this time and did not report any smell. I would have thought that if [the dog] was urinating on the carpet, that the carpet would have smelt after being locked up.
As I am not able to determine on the balance of probabilities that the carpet was damaged during the tenancy then the landlord’s claim for insurance excess fails for damage to the carpet fails. Did the tenant leave the pool in a reasonably clean and tidy state? If not, what is the tenant’s liability?
The landlord is claiming $54.14 for shock dosing the pool. The landlord says that on the 18 December (one week after the tenancy ended) they went to the property and found a sludgy substance in the pool. It is not clear what the ‘sludge’ was that the landlords found.
The tenants claims that they cleaned the pool before leaving and say the evidence that supports this is how clean the filter was a week later, they say that the ‘sludge’ must have occurred after they left the property.
The property manager who conducted an inspection on the 13 December, took a photograph of the pool with the cover on, and pulled back the cover slightly and did not raise any concerns about cleanliness at that time but, says she was unable to properly pull back the cover completely to expose the bottom of the pool on her own.
Having considered all the evidence I consider that it is likely that the sludge was present at the end of the tenancy and that the tenant should have cleaned it out. I say this because: a) The pool cover was on for the whole week 11 December to 18 December 2022. b) There is not a lot of debris on the cover, which would indicate that there has not been an event like a storm which would have blown material into the pool. c) If someone had thrown in the mud or debris into the pool then I would expect some to be on the cover.
I therefore award the landlord the cost of the chemicals to treat the pool of $54.14
I make no finding as to what the ‘sludge’ material was and I make no determination as to who or what put it there, I only say that its existence shows that on the balance of probabilities the pool was not clean at the end of the tenancy. What is the tenant’s liability for the garage door remotes?
A tenant must return all keys and remotes at the end of the tenancy (see s40 (1) (e)(iv) RTA). If the tenant breaches this obligation, then they are liable for the replacement cost including any reasonable costs in replacing the key/remote. I am satisfied that the tenant did not return the garage door remote, and I award the landlord $165.00, which is the amount that they paid for a replacement remote. Even though the tenant claims that the landlord should have been able to program the garage door themselves I accept the landlord’s submission that they wanted an expert to do this work as they did not want to invalidate the warranty on their relatively new garage doors. Did the landlord breach the tenant’s quiet enjoyment? If so, should exemplary damages be awarded?
Section 38(1) of the RTA provides: The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant. Contravention of subsection (2) in circumstances that amount to harassment of the tenant is hereby declared to be an unlawful act.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". 6
The tenant claims that the landlord was overbearing and too intrusive into her tenancy, she says that whist most of the interactions were innocuous in of themselves it was a pattern of behaviour that wore her out and caused her considerable distress. She says that the landlord was demanding as to when things would get done, products that she should use, such as for cleaning the shower, that on occasion when they asked the landlord to not come to the property to check the pool that the landlords continued to ask, that the landlord 6 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. sent texts and emails at late hours and that this correspondence intruded on her peace and privacy. The tenant says that when she notified the landlord of the need for repair of an item, for example the dishwasher that the landlord asked them to make checks even though the tenants say that it needed a proper check from a repair tradesperson.
In short, the tenants felt that they were not trusted in the landlord’s home, and as such they could not relax in their own home that they were paying for. The tenant also says that when she returned for a period of 3 months to the [country] because her mother had died, the landlord contacted her about issues that were not even a problem, such as material being in the mail box, and lawns and gardens, despite the tenants having friends going to the property to check on the lawns and gardens and mail. They say they felt under intense scrutiny throughout the tenancy.
The landlord says that the tenants were not attending to things promptly when they needed to, whilst the landlord gave the tenants space during the time that the tenants were in the [country] they found that items such as the stain on the curtain were not remedied between two inspections. As the home is an executive home, the landlord wanted to ensure that any damage was repaired promptly to mitigate any problems. The landlord denies being overbearing, they say that they attended to matters as they arose. They say the communication has been taken out of context.
Both parties gave a substantial amount of evidence on this claim.
The courts have said about breaches of Quiet Enjoyment: The implied covenant for quiet enjoyment is not an absolute covenant protecting a tenant against eviction or interference by anybody but is a qualified covenant protecting the tenant against interference with the tenant's quiet and peaceful possession and enjoyment of the premises by the landlord or persons claiming through or under the landlord. The basis of it is that the landlord, by letting the premises, confers on the tenant the right of possession during the term and impliedly promises not to interfere with the tenant's exercise and use of the right of possession during the term. 7
The Tribunal has applied this meaning to the landlord tenant relationship in a residential tenancy as: Quiet enjoyment means effectively the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord's agents. Balanced against that, however, one must bear in mind that landlord/tenant relationships tend to be between individuals and that will inevitably involve some interaction between them on a personal level. It is important not to allow a simple clash of personality to become the sole basis for a claim for breach of this type. 8
Having considered all the evidence and submissions made by each party, I am of the view that the landlord overstepped the mark in this Tenancy and breached 7 Kenny v Preen [1963] 1 QB 499 at 511 (CA). 8 Smith & Olmstead v Floris Tenancy Tribunal Auckland TT 1404/93, 9 March 1993. the tenant’s quiet enjoyment. Whilst each interaction on its own may not have satisfied the test, there was a pattern of behaviour from that showed the landlord was somewhat excessive in their approach to issues that arose in the tenancy. An example of this was the curtains. Whilst the curtains had a stain on them, I consider it excessive to expect the tenant to have to take the curtains down and clean them because the landlord found a stain on them at a routine inspection. The obligation is that the tenant keep the premises reasonably clean and tidy during the tenancy and deliver up the tenancy with a property that is reasonably clean and tidy and that is undamaged. If an item is found to have damage (such as a stain) during the tenancy, then the tenant may have until the end of the tenancy to make good that damage, especially if it is minor. I consider the approach that the landlord took to this problem to have been excessive in the circumstances. There was no lawful right for the landlord to check that curtains had been cleaned as a 14 day notice had not been issued, and even the ability to issue a 14 day notice for a small stain on curtains was questionable.
The tenant also said that the landlord’s mistrust of her was evident and whilst the landlord denies this, it is clear that she did. In a letter which the landlord wrote to the tenant on the 20 December after the tenancy ended, the landlord is scathing about the tenant, the way she lived in the home and makes numerous disparaging and in my view completely unfounded and uncalled for remarks about the tenant. Those remarks are quite telling in that they disclose that the landlord did consider that the tenant was at fault when she reported items as damaged as she stated in this paragraph about the insinkerator. “we ended up having to pay for the plumber to fix the insinkerator that you caused to seize. We could have fixed it ourselves for nothing or even better, it would never have broken had the inskinkeator been used with more care.” This accusation is without any basis or merit. There is no evidence to suggest the tenant broke the insinkerator or did not use the insinkerator with care.
In that letter there was also mention of the occasion when the tenant had asked the landlord not to come to the property during the weekend to check the pool as the tenant had suffered a bereavement that week and had a birthday and the tenant thought that they could remedy the problem (filling up the pool) without the landlord coming over. Whilst the landlord did not end up coming, it is clear that the landlord viewed this as the tenant trying to stop the landlord exercising their legal right, rather than simply seeing it as a tenant who wanted to be left alone without interruption and who was willing to fix the problem herself. She questions the validity of the tenant’s excuse and their motivations. In the end the tenant did fill the pool, and sent photographs of that to the landlord’s property manager.
Another example was the time of night that the tenant was texted, which was quite late. When the tenant raised this with the property manager, there was a sense that as the tenant had sent emails and texts late in the evening then the landlord could do this as well. I do not agree. The tenant was texting and emailing a business address/ phone of the property manager. The tenant was receiving correspondence on her personal phone, outside normal hours of business. Landlord s should be careful that they do not intrude into the tenant’s free time and where possible keep the correspondence to reasonable hours.
I have found that the landlord breached the tenant’s quiet enjoyment.
The tenant claimed exemplary damages for this breach. In order to award exemplary damages, I have to be satisfied that the landlord intended to commit the unlawful act. The landlord made it clear at the hearing that they did not intend to commit the unlawful act, they believed that they were merely responding to issues as they arose. I am satisfied, after hearing from the landlord, that the landlord was genuine in this belief and that they did not intend to cause distress to the tenants. In coming to this determination, I also am mindful that the tenant did not give the landlord a 14-day notice or specifically ask them to refrain from particular behaviour, and when the tenant did ask the landlord not to come to the property or not to text at certain times the landlord complied. I am also mindful that the landlord did give thought to the tenant’s situation when the tenant was overseas, and the landlord asked the property manager to ‘cut the tenant some slack.’ As I have found that the landlord was not acting intentionally when committing these breaches, then I do not find that they have committed an unlawful act and therefore do not award exemplary damages.
However, I am able to award compensation for this breach of s 38(2) 9 I award a nominal amount of $300.00 in general damages to the tenant. Landlord’s do have to be careful about when and how they speak or correspond with tenants about issue, their approach, and the nature and extent of the communication on issues when they arise. Name suppression and filing fee.
As each party has been somewhat successful in their claims then I award each party name suppression as requested.
I do not award either party the filing fee.

Tenancy Tribunal case 4492805 — Property damage at 5 Godwit Place, Waiuku, Waiuku 2123

At a glance

Tenancy Tribunal case 4492805 — Property damage at 5 Godwit Place, Waiuku, Waiuku 2123

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions