What was the outcome of Tenancy Tribunal case 4502680?

The tribunal order states: The Tribunal has jurisdiction to hear the parties’ claims.

How much money was awarded in case 4502680?

Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4502680?

The primary dispute was Cleanliness. Related themes: Compensation.

Where can I read the official tribunal order for case 4502680?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9118149-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4502680?

The tribunal order states: The Tribunal has jurisdiction to hear the parties’ claims.

How much money was awarded in case 4502680?

Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4502680?

The primary dispute was Cleanliness. Related themes: Compensation.

Where can I read the official tribunal order for case 4502680?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9118149-Tenancy_Tribunal_Order.pdf.

36 Jade Avenue, Pakuranga Heights, Auckland Tenancy Tribunal Case 4502680 — Cleanliness

Claims and awards in Tenancy Tribunal application 4502680. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
sTenants Return of withheld deposit/bond	$1,066.19		sTenants Return of withheld deposit/bond
Filing fee reimbursement	$20.44		Filing fee reimbursement

Claims and awards in Tenancy Tribunal application 4502680. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
sTenants Return of withheld deposit/bond	$1,066.19		sTenants Return of withheld deposit/bond
Filing fee reimbursement	$20.44		Filing fee reimbursement

Order

The Tribunal has jurisdiction to hear the parties’ claims.
The Neilsons’ claim for return of the rest of their deposit is allowed.
Elaine McGough and Grant McGough must immediately repay Naoko Neilson and Russell Neilson $1,086.63, calculated as shown in table below.
All other claims are dismissed. DescriptionLandlordsTenants Return of withheld deposit/bond $1,066.19 Filing fee reimbursement $20.44 Total award to the tenants $1,086.63

Reasons

The McGoughs attended the hearing in person at Manukau District Court. 1
The Neilsons attended the hearing by telephone because they live overseas.
The Neilsons seek return of the unrefunded $1,066.19 of the $2,400.00 deposit they paid to the McGoughs. The McGoughs kept that sum on the grounds that the Neilsons did not return the premises reasonably clean and damaged a refrigerator drawer during the tenancy. The Neilsons dispute those allegations.
The McGoughs dispute the Tribunal has jurisdiction to hear this matter.
If the Tribunal finds it has jurisdiction, the McGoughs contend that the portion of the deposit they kept was rightly retained and, further, seek an order that the Neilsons pay another $2,240.00 in rent for their use of a fourth bedroom at the premises. Background
The Neilsons are United States citizens. They are university professors who work at a university in Philadelphia. They have their three school-age children.
The Neilsons’ university granted them six-month sabbaticals for late 2022 to early 2023. The sabbaticals’ terms relieved them of their face-to-face teaching duties and permitted them to travel but required them to continue their research and other scholarly duties full-time.
Since the Neilsons have family in Auckland, they decided to use some of their sabbatical to live and work near to them. They and their three children rented the premises, which are near to their family members, from 5 November 2022 to 25 January 2023.
The McGoughs are experienced property owners/property managers. They flexibly rent their properties out for various, purposes including long-term residential sue and short-term holiday stays. They regularly take bookings through Airbnb but also rent out their premises through other platforms.
The Neilsons first found the premises advertised online for rent at $745.00. They emailed in answer to the ad: I’m interested in the house in Pakuranga Heights. Is the house available and would you consider a [approx.] 3 month furnished rental? We are a family of five, and will be in New Zealand from Nov 4 until early February. 1 The case was heard at the Manukau District Court on 21 June 2023.
The Neilsons and McGoughs agreed to avoid an Airbnb rental, which would have meant paying a percentage to Airbnb, and a rate of about $1,890.00 per week. They agreed a weekly rental of $1,200.00 for a minimum 10-week term.
The McGoughs sent the Neilsons an agreement titled, “Rental Agreement – Short-term Accommodation”. Among other things in the agreement, the McGoughs were described as “Host” and Neilsons were described as “Guest” and a payment to be held as security was described as a “deposit”. The arrangement was variously described as an “occupancy” and a “tenancy”.
One of the agreement’s terms was a requirement that the parties complete a premises inspection report together prior to commencement of the tenancy. However, the McGoughs could not complete the inspection report with the Neilsons because were overseas when the previous Airbnb tenancy ended, and the Neilsons’ tenancy began.
The tenancy progressed without major incident. However, the McGoughs declined to return the Neilsons full deposit at the end of the tenancy for reasons the Neilsons dispute. Issues for determination
The issues for determination are: a. Does the Tribunal have jurisdiction to determine the dispute? b. Assuming jurisdiction: i. Did the tenants leave premises reasonably clean? ii. Are the tenants liable for damage to the refrigerator drawer? iii. Should the tenants pay the landlords for their additional use of the fourth room? Does the Tribunal have jurisdiction to hear the parties’ claims? Legal principles
The long title of the Residential Tenancies Act 1986 (RTA) states, among other things, it is a establish a Tribunal to determine disputes between landlords and tenants of residential properties. It is: An Act to reform and restate the law relating to residential tenancies, to define the rights and obligations of landlords and tenants of residential properties, to establish a tribunal to determine expeditiously disputes arising between such landlords and tenants, to establish a fund in which bonds payable by such tenants are to be held...
The RTA sets out the Tribunal’s jurisdiction under the heading “Jurisdiction” at ss 77-85. Section 77(1) is the foundational subsection: 77 Jurisdiction of Tribunal (1) The Tribunal has, subject to the Limitation Act 2010, jurisdiction to determine in accordance with this Act any dispute that— (a) exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and (b) relates to any tenancy to which this Act applies or to which this Act did apply at any material time.
The meaning of the words “landlord”, “tenant”, and “tenancy” are core to assessing jurisdiction. In s 2 of RTA “unless the context otherwise requires” the RTA applies the following meanings to those words: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement... tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under agreement... tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent ...
There is no getting out of the Act if there is a residential tenancy. Section 4 of the RTA provides that: This Act applies to every tenancy for residential purposes except as specifically provided.
Consonant to s 4, s 11 of the RTA provides that an agreement to exclude the Act is “of no effect”. 2
However, s 5 of the RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Under s 5(1)(m), the RTA “shall not apply”: “where the premises are let for the tenant’s holiday purposes.”
Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, the McGoughs have the burden of proving the facts upon which they submit RTA does not apply. 2 There are limited exceptions set out in s 11 that do not apply here. The McGoughs’ argument
The McGoughs’ detailed and helpful argument can be summarised as being twofold. 3 Firstly, the Neilsons agreed to a short-term rental that is not covered by the RTA. The McGoughs were not “landlords” and the Neilsons were not “tenants”. They were “hosts”, and the Neilsons were “guests”.
Second, the RTA (and therefore the Tribunal’s jurisdiction) is excluded by s 5(1)(m) of the RTA which disapplies the RTA “where the premises are let for the tenant’s holiday purposes”.
For the first argument, the McGoughs point to factors such as that the tenancy agreement which used the terms “guest” and “host” as opposed to the “landlord” and “tenant”. They also emphasise that the tenancy was for less than 90 days (it was for 82 days).
For the second limb of their argument, they rely heavily on Tenancy Services’ website guidance which states: Holiday homes The Act doesn’t apply when the house is being rented for the tenant’s holiday purposes. In other words, the tenant actually lives somewhere else and is just staying in the house for a holiday. Typically, holiday houses are let for short periods. If the homeowner wants to let their home to someone who wants it for a lengthy sabbatical or holiday, they could elect to ‘contract into’ the Residential Tenancies Act to avoid any doubt about whether the Act applies to their arrangement.
The Neilsons rented the premises for hold purposes. The parties did not “contract into” the RTA. Discussion
It is useful to consider first whether there were in the circumstances a “tenancy”, “a landlord”, and “a tenant”.
There was a “tenancy” because the Neilsons were granted a right to occupy the premises in consideration of payment, and the premises are residential premises.
The McGoughs fall within the meaning of “landlord” because they were the grantors of a tenancy. The Neilsons were “tenants” because they were the grantees of the tenancy.
At first blush then, this arrangement was for a residential tenancy under the RTA. However, the McGoughs’ argument there was not one must be considered. 3 The McGoughs’ argument was detailed. This is only a summary.
The McGoughs provided copies of the emails between the parties leading up to the tenancy. They say the emails and the short-term rental agreement excluded the RTA and that was their intention. The Neilsons were not alive to issues such as whether the RTA applied to the agreement, they just left the technical compliance to the McGoughs.
In the agreement, the McGoughs labelled themselves, “hosts” and the tenants, “guests” but labels cannot obscure the substance of the arrangement. As District Court Judge Neave commented in this context: 4 [T]he labels that the parties give to the arrangement will not and cannot be determinative. It will always be necessary to examine the full facts of the situation and determine what the substance of the arrangement was.
Moreover, parties cannot contract out of the RTA if it applies. 5
The first part of the McGoughs’ argument fails. The RTA applies to the tenancy. That leaves the second aspect of the McGoughs’ argument.
The McGoughs submit that s 5(1)(m) of the RTA excludes the RTA because the Neilsons rented the premises for their holiday purposes. In opposition to that argument, the Neilsons submit their sabbatical cannot be equated to a holiday. They did take some time off while they were on sabbatical, but they were living and working from the premises, they were not holidaying there.
A leading author explains that the “exclusion does not apply to tenants on a working holiday and not occupying the premises for holiday purposes”. 6 District Court Judge Neave’s description of tenants who were on a working holiday is instructive: 7 [11] Section 5(m) refers to the situation where premises are let for the tenant's holiday purposes. Certainly the purported tenants were here on a working holiday but that does not mean that they were having the house for holiday purposes. There is every difference between somebody coming to the country and having settled accommodation whilst they explore it, as opposed to someone who, for example, rents a holiday bach at a local seaside resort.
The long initial tenancy period of at least 10 weeks is more consistent with a working holiday or working sabbatical rather than a holiday stay. The Neilsons also put their children in school, which is not what holidaymakers would typically do. On 26 November 2022, the Neilsons’ emailed the McGoughs, “We’re usually at home during the day working, unless we go out to lunch”. 4 In Watson v Watson DC Christchurch CIV-2020-009-2030, 14 September 2010 at [9]. 5 Under s 4 of the RTA, the Act “applies to every tenancy for residential purposes except as specifically provided” and under s 11 of the RTA and agreement to exclude the Act is “of no effect” except in limited circumstances that do not apply here. 6 See Stewart Benson Residential Tenancy Law in New Zealand (Thomson Reuters, Wellington, 2018) at 2.10.13 7 In Watson v Watson DC Christchurch CIV-2020-009-2030, 14 September 2010 at [11].
The preponderance of the evidence supports the Neilsons’ submission that they were using the premises primarily for working purposes. There is nothing of any weight that contradicts what they say.
It does not matter that the tenancy was for less than 90 days. Under s 7 of the RTA, fixed-term tenancies of less than 90 days in total are not subject to market rent restrictions or the usual notice rules. However, such tenancies still fall under the RTA. Conclusion
The Tribunal must find that the premises were not “let for the tenants’ holiday purposes”. It follows, s 5(1)(m) does not exclude the tenancy is from the RTA.
The McGoughs have not established that the Tribunal does not have jurisdiction to hear the matter. The Tribunal must determine the parties’ claims.

Did the tenants leave the premises reasonably clean?

Legal principles

At the beginning of a tenancy, landlords must provide the premises in a reasonable state of cleanliness. 8 Tenants must keep the premises reasonably clean and tidy during the tenancy, and they must return them in a reasonably clean and tidy state and remove their rubbish at the end of the tenancy. 9
The RTA does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. In Ace Property Management v Owens 10 the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.
Generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy. 11 That principle is fair and common-sensical. 8 Section 45(1)(a) of the RTA. 9 See ss 40(1)(c) and (e)(iii) of the RTA. 10 DC Wellington, CIV-2008-085-14441, 17 December 2008. 11 See for example Westwood v Western DC Otahuhu DT2539/93, 4 November 1994.
There is no magic formula for determining what is “reasonably clean and tidy”. The Tribunal must evaluate the evidence available, which in this case includes the parties’ oral evidence, their correspondence, and the inspection report and photographs.
The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particularly painted surfaces.
Contractual provisions that require a tenant to have the premises professionally cleaned at the end of the tenancy are unenforceable. 12 So for example, landlords cannot insist that tenants commercially clean the carpets unless that is necessary to return the carpet to a reasonably clean condition. Discussion
Typically, landlords who bring cases to the Tribunal alleging that tenants have not left the premises reasonably clean provide the Tribunal with pre-tenancy photographs to establish that the premises were handed over in an at least reasonably clean condition. The landlords have not provided any pre-tenancy photographs. However, that omission is not determinative. It is still open to landlords to prove the cleanliness of the premises by other means such as direct evidence of someone who saw the premises prior to the tenancy beginning, or a property inspection checklist, for example.
In this case, the McGoughs primarily rely on a property inspection checklist to establish the cleanliness of the premises at the beginning of the tenancy. That checklist is comprehensive, containing about 90 items. The landlords were overseas when the Neilsons’ tenancy began, but the checklist contains the landlords’ assessment which records virtually every item to be in average, good, very good, or excellent clean condition with no damage bar for example a “Chip by a door handle”, “Missing cover plate”, “Paint chipped above mirror”, “Wallpaper a little scuffed on corners”.
The Neilsons say the premises were not reasonably clean at the beginning of the tenancy by any means. On the first day of the tenancy, the tenants emailed the landlords: A couple of things don’t seem all that clean, such as the bathtub and washing machine. We’ll note that in the inspection report in a day or two. 12 See s 11 of the RTA.
The landlords replied from overseas apologising for the premises not being provided fully cleaned and mentioning the previous “nightmare” guests and that one of their cleaners may have been “preoccupied”: Apologies for the bathtub and washing machine. Our Airbnb guests were a nightmare but [two people] 13 should have cleaned it properly, [one of the two people] has been having chemo so she may have been preoccupied particularly as they were so untidy...
On 14 November, the tenants emailed their completed inspection report. They noted only by way of deficiencies that the bathtub was dusty, the washing machine was dirty, and that the dishwasher detergent dispenser did not open during use. However, in their covering email they also said, “Floors also needed a good vacuum, but I didn’t bother noting that.”
The McGoughs submit, that when they took back the premises at the end of the tenancy, among other things, the laundry tub was dirty, the shower was dirty, the floors were not mopped, and interior windows had finger marks at “child height”. After the hearing, the McGoughs emailed the Tribunal close-up photographs as a representative sample of how the Neilsons left the premises. The photographs, in brief summary, show some stains on a leather storage cube. A basin with soap bubble residue. A slightly rusty basin sink hole with minor soap residue. A basin sink hole with rust and metallic residues but no soap residue. Crumbs on a dining chair. A liquid stain on a dining chair and some trace stains on the floor. A glass stovetop with traces of heat-ingrained residues. An oven tray and grate with baked-in residues. A pantry cupboard with seven grains of rice, a hair, and tiny detritus. A small wooden sideboard with some dusty shelves inside. A shower soap dish with one hair and a superficial soapy residue. A laundry bench top with a light dusting of lint-like material. Pots that look cleaned but with modest baked-in residues consistent with use in cooking. A couch base that has some sandy detritus under its cushions. Crumbs on a toaster. A dryer filter that has lint residue as might occur from one cycle. A washing machine top with lint-type residue. A laundry sink that has some soapy remnants, sand-like grains, a hair, and possibly a small dead insect. The bathroom floor has a few minor stains.
The McGoughs say the premises was so unclean they had to spend the entire day cleaning the house to get it to a reasonably clean standard.
Prior to the hearing, the Neilsons submitted mid-distance photographs they had taken after their final clean. The photos indicate, in brief summary, the kitchen bench, kettle, toaster, window appear recently cleaned although there are imperfections such as minor wipe marks and just-visible smears on the windows. The pantry doors, kitchen floors look recently cleaned, but not immaculate. The bathroom bench, mirror, and sink look recently cleaned, but there are a few small 13 Not named for privacy reasons. water droplets and small water-residue marks on the floor and soap bubbles in the sink. The kitchen bench and window appear recently cleaned but there are barely perceptible smoky smears on window. The stove and wall appear recently cleaned but there are some baked-in patina marks on stove and barely perceptible marks on the tile splash-back. A separate toilet room appears recently cleaned but there is a small white mark on the floor. The living room and couch appear recently vacuumed. The shower cubicle appears recently cleaned but there is a perceptible soap film on the glass walls of the shower cubicle and tiny build-ups of gunk in corners and edges that could be removed by a deep clean. The laundry appears clean but may have a light scattering of lint and windows have slight water/dust type residue. The dining room looks recently cleaned but there is a small stain on the floor and the windows have possible finger marks. The refrigerator looks clean.
The tenants maintain they left the premises cleaner than they found them. Among other things, they left the pantry cleaner than when they arrived. They did not use the wooden sideboard with dusty shelving. The toaster had breadcrumbs on it when they arrived. They had to vacuum the premises when they arrived. The washing machine was dirty, and the bath was quite unclean with a lot of hair residue. They had not detailed the full extent of how unclean the premises were when they arrived because they did not see the need to do so. Discussion
The landlords bear the onus of proving that the tenants did not leave the premises reasonably clean to the standard of on the balance of probabilities.
I have carefully considered all the relevant evidence.
The tenants’ photographs indicate they left the premises relatively clean albeit there were some minor imperfections. The landlords’ photographs confirm there were some minor cleanliness issues such as crumbs in the toaster and on a dining chair.
I find on the balance of probabilities that the tenants did leave the premises reasonably clean and tidy. It is more likely than not that the tenants left the premises cleaner and tidier than when they arrived. The landlords’ email at the beginning of the tenancy acknowledged that the premises may well not have been as clean as they should have been. It would not be fair to impose a higher standard of cleaning on the tenants than the standard of cleaning they met. Conclusion
The landlords have not proven that it is more likely than not that the tenants did not leave the premises reasonably clean.
The landlords’ claim for the costs of cleaning is dismissed.

Are the tenants liable for damage to the refrigerator drawer?

The McGoughs say the Neilsons are liable for a crack in one of the refrigerator’s drawers.
One of the Neilsons’ photographs shows a crack in one of the righthand side drawers. The crack appears cosmetic. The drawer appears to be otherwise in working order. As at the date of hearing, the premises have been re-tenanted, yet the landlords had not replaced the drawer, which confirms the drawer remains serviceable. Legal principles
The landlords 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. 14
Assuming liability, the landlords must prove they have suffered a related loss that the tenants should compensate them for. Discussion
The landlords did not submit any pre-tenancy photographs to prove the drawer was not cracked prior to the tenancy. Neither the landlords nor the tenants note any damage to the refrigerator drawer in the pre-tenancy inspection report. However, the damage is so minor that any typical person could easily overlook them.
It is entirely probable the tenants would not have noticed the crack in the door when they filled out the inspection report.
I am not satisfied on the balance of the probabilities that the damage to the drawer occurred during the Neilsons’ tenancy.
The landlords have not had to replace the drawer so there is no proven loss. 14 Sections 40(2)(a), 41 and 49B of the RTA. Conclusion
This claim is not proved. It is dismissed.

Should the tenants pay the landlords for additional use of the fourth bedroom?

Legal principles

For there to be an enforceable contract there must be offer, acceptance, an intention to create legally binding relations, certainty of terms, and consideration. The circumstances of the Neilsons using the fourth bedroom
The original tenancy agreement was for only three bedrooms of the house and did not include the extra fourth bedroom and ensuite. Later, the Neilsons agreed with the McGoughs to rent the fourth bedroom for three or four nights for Ms Neilson’s parents to visit.
However, on 11 December 2022, the tenants emailed asking if they could use “the in-law suite” to isolate due to family members contracting COVID-19: I have COVID and have been isolating in one room, but now on day 5, my son has tested positive too. It’s hard for him to mask and generally stay put since he’s 3.
Ms McGough replied kindly: Of course. I think it is locked but we are coming down this morning and will unlock it and make sure it is clean and make up the bend and put fresh towels in...I will be able to get it all unlocked and ready for you by noon. Is that okay? ...Take care
When the Neilsons thanked Ms McGough, she replied “It was our pleasure!”
After the tenancy ended the McGoughs sent the tenants a two-page email dated 1 February 2023 setting out the landlords’ final reckoning of what the tenants still owed. The email details among other matters the landlords’ costs for cleaning and for repair. The McGoughs’ email advises the Neilsons, the McGoughs will keep $1,066.19 of the Neilsons’ deposit and refund them $1,333.81. Discussion
The McGoughs’ detailed end-of-tenancy email makes no mention the Neilsons use of the fourth bedroom for COVID-19 isolation.
The McGoughs say the reason they did not mention the matter or ask for payment previously was that their written agreement did not cover the situation. However, once the matter was before the Tribunal, they thought they could rectify that oversight.
The Neilsons say they believe the McGoughs offered the bedroom out of kindness, for which they were grateful. Indeed, the McGoughs had been considerate and professional throughout the tenancy, and this kindness was completely in character.
I find that in all probability, the McGoughs provided the fourth bedroom to the Neilsons out of kindness and without intending to charge for it. It was only after the parties fell into dispute that the McGoughs regretted their generosity and attempted to withdraw the gift. Conclusion
The McGoughs’ grant of the use of fourth bedroom to the Neilsons was a gift by way of a bare licence revocable at will. There was no intention to create legally binding relations. There was no certainty of terms. There was no contract.
This claim is dismissed. Outcome
The Tribunal finds it has jurisdiction to hear the parties’ claims.
The tenants’ claim is allowed. The landlords must repay them the portion of the deposit/bond the landlords kept.
The landlords’ claims are dismissed.

Tenancy Tribunal case 4502680 — Cleanliness at 36 Jade Avenue, Pakuranga Heights, Auckland

At a glance

Tenancy Tribunal case 4502680 — Cleanliness at 36 Jade Avenue, Pakuranga Heights, Auckland

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Did the tenants leave the premises reasonably clean?

Are the tenants liable for damage to the refrigerator drawer?

Should the tenants pay the landlords for additional use of the fourth bedroom?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Did the tenants leave the premises reasonably clean?

Are the tenants liable for damage to the refrigerator drawer?

Should the tenants pay the landlords for additional use of the fourth bedroom?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions